The Prosecutor's Handbook

2014
THE PROSECUTORS
HANDBOOK
AN INTRODUCTION TO PROSECUTIONS
A handbook containing policy and law covering the role and

responsibilities of the Director of Public Prosecutions and his
prosecutors from the charge to the appeal.
FOREWORD
This introductory handbook is designed to serve as a tool to assist prosecutors prepare and advance fair
and ethical criminal prosecutions. There are three important principles that must be borne in mind:
Abbreviations
(i) The Director of Public Prosecutions entrusts lawyers with the great task of prosecuting
ADPP - matters on behalf
Assistant of theofState;
Director Public Prosecutions
CAP - Chapter
(ii)
CASES - Prosecutors Criminal must undertake
Advocacy Supportthisandtask under
Enquiry the directives of the Director of Public
System
CD 09 - Prosecutions, Crimes Decree and within
2009 the bounds of prosecutorial discretion; and
COA - Court of Appeal
(iii)
Constitution If the prosecutorofdoes
- Constitution not discharge
the Republic of Fiji,his or her responsibilities ethically and within the
2013
CPC - ambits of the law, he or she turns a prosecution
Criminal Procedure Code Cap 21 (now repealed) into a persecution and brings disrepute to
CPD 09 - bothCriminal the officeProcedure
he or she Decree
holds and the office he or she represents.
2009
DPP - Director of Public Prosecutions
The lawyer
DDPPwho - joins the Office
Deputy Directorof ofthe Director
Public of Public Prosecutions as a new recruit should be
Prosecutions
commended
I.O - for making the cut. However,
Investigating Officer he or she must understand that this is but the beginning of a
journey,J not
- the end ofJustice one. D.A Bellemare,
(denoting a PuisneM.S.M, Q.Cofput
Judge thebest
Highthe often difficult course for the prosecutor
Court)
when heJAsaid:
- Justice of Appeal (denoting a Judge presiding over the Court of Appeal)
LO - Legal Officer
It is
MT - not easyMentions
to be a prosecutor.
Team It is often a lonely journey. It tests character. It requires
inner-strengthMentions
MTM and self-confidence.
Team Member It requires personal integrity and solid moral compass.
It requires
ODPP - humility
Office ofandthewillingness,
Director of where appropriate, to recognise mistakes and take
Public Prosecutions
appropriate
Officer - steps to correct them. Prosecutors must be passionate about issues, but
State Counsel
compassionate
Para - in their approach, always guided by fairness and common sense.
Paragraph
PEP - Preliminary Enquiry Paper (a number ascribed to uncharged Police Dockets)
The prosecutor
POCA - should remain of
Proceeds fiercely
Crimeindependent,
Act fair and courageous. The responsibilities entrusted to
the Director
PLO - of Public Prosecutions,
Principal and thereby to State Counsel and police and public prosecutors,
Legal Officer
demandRnothing
- less. Reginam
s. - Section
With this
SChandbook,
- you will have
Supreme Courtthe chance to gain a sound knowledge base from which you might wish
to launch
SLOyour - practice as an
Senior LegalOfficer under the Director of Public Prosecutions. At the end of the day,
Officer
however,SPDit must
09 - be borne in mindand
Sentencing that this is still
Penalties nothing
Decree 2009 more than a handbook.
The course of your practice, your reputation and your professional accomplishments are still very much
matters for you to attain and sustain; this being Statutes
but a foundation from which you may wish to build and
strengthen your practice as a prosecutor.
Bail Act, 2002 - Prevailing statute for all bail applications.
CD 09 - Prevailing statute for criminal offences post 1 February, 2010
Penal Code, Cap. 17 - Prevailing statute for criminal offences pre 1 February, 2010
CPD 09 - Prevailing statute for criminal trial, pre-trial and High Court appeal
procedures post 1 February 2010
Criminal Procedure Code, Prevailing Christopher
statute forT.criminal
Pryde trial, pre-trial and High Court appeal
Cap. 21 - DIRECTOR OFpre
procedures PUBLIC PROSECUTIONS
1 February 2010
POCA - Prevailing statute for proceeds of crime appplications.
SPD 09 - Prevailing statute for sentencing procedure post 1 February 2010
COA Act and Rules - Prevailing statute for Court of Appeal appeal procedures
SC Act and Rules - Prevailing Statute for Supreme Court appeal procedures.
CONTENTS
Foreword by the DPP 1

Organisational Statements and Values 2
DPP Constitutional Mandate 3
DPP Powers to Delegate, Supervise, Transfer 4
DPP Power to Appoint 5
DPP The Need for Independence 6
The Prosecutor -The Duty of a Prosecutor 7
The Prosecutor Responsibilities of State Counsel in Positions of Supervisory 8
Authority
File Protocols - Advice 12
File Protocols Communication 14
Advice Procedure Flow Chart 17
Advice Template 18
Diagrams of the Advice Process and its Requirements 19
CASES 20
The Mentions Team 22
Appearances through the Court System 24
Fault Elements Mens Rea, Strict Liability and Absolute Liability 25
Fault Element - Doli incapax 28
The Charge 30
The Test for Prosecution 31
The Charge Format 32
Duplicity 44
Severance 45
Representative Counts 48
Rights of an Accused person 50
The Plea 51
Disclosure 56
Bail 58
CONTENTS
Court Etiquette 66
Voir Dire 68
The Trial Process 72
Addresses 77
No Case to Answer 79
The Sentencing Policy 80
Convictions on Alternative Counts, Lesser and Minor Offences 82
Proceeds of Crime Applications 83
The Decision to Appeal 101
Appeal Procedure Flow Chart 103
Appeal Grounds High Court to Supreme Court 104
Appeals Magistrates Court to High Court 105
Appeals High Court to Court of Appeal 107
Appeals Court of Appeal to the Supreme Court 110
Appeals Leave to Adduce Additional Evidence 112
Appeals Leave to Appeal out of Time 116
APPENDICES
Appendix 1: Chief Justices Practice Direction No. 2 of 1982 Supplementation of

Record of Proceedings in the Magistrates Court for Purposes of
Appeal to the Supreme Court.
Appendix 2: Chief Justices Practice Direction No. 1 of 1983 Trial within Trials
Appendix 3: Chief Registrars Practice Direction No. 3 of 1993 Special Damages
in Special Injury Actions
Appendix 4: Chief Registrars Practice Direction No. 2 of 1994 Probate
Appendix 5: Chief Registrars Circular of 31 of 1996 Commencement of Civil
Proceedings Arising in the Northern Division
CONTENTS
Appendix 6: Chief Justices Practice Direction No. 1 of 1999 Rights of Audience

Appendix 7: High Court of Lautoka Practice Direction 1 of 2000 Order 34 Pre-
Trial Conferences and Setting Down for Trial
Appendix 8: Chief Registrars Practice Direction 1 of 2000 Affidavits
Appendix 9: High Court Practice Direction 2 of 2000 Requirement for Counsel
to be briefed.
Appendix 10: High Court Practice Direction 3 of 2000 Settling of Orders for
Sealing
Appendix 11: Chief Justices Practice Direction No. 1 of 2010 Court Dress for
Legal Practitioners
Appendix 12: Chief Justices Practice Direction No. 1 of 2011 Withdrawal of
Counsel in Criminal Proceedings
Appendix 13: Chief Justices Practice Direction No. 2 of 2011 Cessation of
practice of including fathers name of litigants of Indian ethnicity on
all Court Documents
Appendix 14: Chief Justices Practice Direction No. 1 of 2012 Appellate
Procedures and Forms of Address
Appendix 15: Chief Justices Practice Direction No. 2 of 2012 Wills and Non
Contentious Probates Registry Practices
Appendix 16: Chief Registrars Notice dated 30 October 2012 Notice pursuant to
the Legal Practitioners (Amendment) Decree No. 53 of 2012
Appendix 17: Notice dated 7 March 2014 Legal Practitioners Unit Investigations
Appendix 18: Chief Registrars Directive to Legal Practitioners 1 of 2014
Appearances by Counsel with less than 2 years in practice
ORGANISATIONAL STATEMENTS
The Office of the Director of Public Prosecutions Vision and Mission Statements are as follows:
VISION
A modern and professional prosecution service that supports national
goals and aspirations of peace and good governance.
MISSION
To deliver a fair and independent prosecution service committed to the
rule of law.
ORGANISATIONAL VALUES:
INDEPENDENCE
FAIRNESS
COURAGE
Leadership is the ability to translate vision into reality.
- Warren Bennis -
THE DIRECTOR OF PUBLIC PROSECUTIONS
The Director of Public Prosecutions is an important regulator of criminal proceedings in Fiji [see Fiji
Independent Commission Against Corruption v Devo [2008] FJHC 132; HAC177D.2007S (27
June 2008) and Section 117 (8) of the Constitution 2013].
The Director of Public Prosecutions is the premier law officer in all criminal matters. All
prosecutors; whether State Counsel, public prosecutors, police prosecutors or private prosecutors;
must comply fully with his directives.
It is, therefore, imperative that prosecutors understand the role and functions of the DPP.
Diagram 1: Section 117 (8) of the Constitution of the Republic of Fiji, 2013
The Constitutional Powers of the DPP:
Discontinue, at any stage

before any judgment is
Take over criminal
delivered, criminal
proceedings instituted by
proceedings instituted by or
another person or
conducted by the DPP, or by
Institute and conduct authority (save those
any other person or
criminal proceedings. proceedings instituted by
authority (save those
the Fiji Independent
instituted or conducted by
Commission Against
the Fiji Independent
Corruption).
Commission Against
Corruption).
The DPP may intervene in proceedings that raise a question of public interest that may affect the
conduct of criminal proceedings or criminal investigations.
The DPP must be a person who is qualified for appointment as a Judge and shall be appointed for a
term of 7 years. The remuneration of the DPP shall not be less than that paid to a Judge. These
provisions both recognise, and protect, the positional responsibilities of the DPP as an important
regulator of criminal proceedings in Fiji.
The DPP is independent and in the exercise of his powers shall not be subject to the direction or
control of any other person or authority, except by a court of law or as otherwise prescribed by the
Constitution or a written law.
The Director of Public Prosecutions has the authority to determine all matters pertaining to the
employment of all staff in the Office of the Director of Public Prosecutions, and is given sole
authority to appoint, remove and discipline staff (including administrative staff). In exercising these
powers, the DPP is subject to the principles of natural justice and to Fijis employment laws.
THE DIRECTOR OF PUBLIC PROSECUTIONS: POWER TO DELEGATE AUTHORITY
Section 117 (9) of the Constitution 2013
The powers of the Director of Public Prosecutions may be exercised by the Director personally,
or through other persons acting on his instructions.
Section 50 of the Criminal Procedure Decree 2009
The Director of Public Prosecutions may by written notice authorise any lawyer to be a State
Counsel and may authorise any such lawyer to exercise all or any of the functions vested in the
Director of Public Prosecutions... in accordance with law.
SUPERVISION & CONTROL
of the Criminal Procedure Decree 2009

Section 54
Every police officer lawfully conducting a prosecution and every public prosecutor appointed by
the Director of Public Prosecutions shall be subject to the directions of the Director of Public
Prosecutions.
POWER TO TRANSFER PROSECUTIONS
Section 55 (3) of the Criminal Procedure Decree 2009
The Director of Public Prosecutions and the Commissioner of Fiji Independent Commission
Against Corruption may at any time transfer to each other the conduct of any prosecution at any
time before the close of the prosecution case. In such a case the public prosecutor or Fiji
Independent Commission Against Corruption prosecutor as the case may be, is deemed to have
been appointed by the Director of Public Prosecutions or Commissioner of Fiji Independent
Commission Against Corruption to prosecute.
POWER TO APPOINT PUBLIC PROSECUTORS
Section 51 (1)
The Director of Public Prosecutions may appoint any lawyer to be a public prosecutor for the
purposes of any case.
Section 52 (1)
A public prosecutor may appear before any court in which any case of which the public
prosecutor has charge is under trial or on appeal.
POWER TO APPOINT POLICE PROSECUTORS

The Director of Public Prosecutions as he thinks fit may appoint police officers to be police
prosecutors for the purposes of conducting prosecutions in the Magistrates Court. No police
prosecutor may appear in the Magistrates Court without such appointment.
In any trial before a Magistrates Court, if the proceedings have been instituted by a police
officer, any police officer having lawful authority to conduct the case may appear and conduct
the prosecution notwithstanding the fact that he or she is not the officer who made the
complaint or charge.
My job as a prosecutor is to do justice. And justice is served when a guilty man is

convicted and an innocent man is not.
- Sonia Sotomayor
THE DIRECTOR OF PUBLIC PROSECUTIONS:
The Need for Independence
In order to advance the rule of law, and in particular to protect the principle that all are equally
subject to the law, the DPP (and therefore his officers) must be independent.
The Constitutional provision at Section 117 (10) of the Constitution 2013 ensures that the DPP has
complete independence in his decision making processes. This is vital to protect the integrity of the
criminal justice system because it guarantees that any decision to prosecute a person or a corporate
body is made free of any external influences. In the words of John Kelly TD, the prosecution system
should not only be impartial but should be seen to be so and that it should not only be free from
outside influence but should be manifestly so.
Recognising that the Attorney-General as a law officer of dignity and standing is still a member of a
political party elected by the people into office, and in order to avoid the danger that that political
aspect may give rise to a perception (however misconceived) that the decision to prosecute is
politically motivated, agency to prosecute is vested in the separate and independent person of the
DPP. In light of that consideration, it is of vital importance that both the DPP and every prosecutor
remain apolitical at all times.
The following observations are useful to bear in mind:
the use of prosecutorial discretion should be exercised independently and free from
political interference. Prosecutors are required to carry out their duties without fear,
favour or prejudice impartially, with objectivity, unaffected by individual or sectional
interests and public or media pressures, fairly, having regard to all relevant
circumstances, irrespective of whether they are to the advantage or disadvantage of
the suspect and make all necessary and reasonable enquiries and disclose the results of
those enquiries, regardless of whether they point to the guilt or innocence of the suspect
That is a role which, I fear, is not well understood in the community. It may not be a
popular position but it is a very valuable and important one.1
Anna Katzmann, SC2
The Director of Public Prosecutions is a person who must be capable of upholding and defending the
integrity and independence of his office, and in so doing, win and hold public trust in that integrity
and independence.
In order to protect the integrity of his office, the Director of Public Prosecutions periodically
publishes comprehensive policies, guidelines and directives to ensure procedural fairness in the
decision making process. These policies, guidelines and directives must be adhered to by every
prosecutor.
While the prosecutor should diligently and vigilantly protect the independence of the Office of the
Director of Public Prosecutions, no Director and no prosecutor should ever fear direct scrutiny.
Independence without accountability is an illusion. Independent power is entrusted

only to those who (can) give an account of its exercise.3
John McKechnie, QC4
1 Extract from a Speech by Anna Katzmann, SC at a dinner of the NSW Law Societys Government Lawyers CLE Conference on 30 October
2007.
2 Now the Hon. Anna Katzmann, Judge of the Federal Court of Australia.
3 McKechnie, J. Directors of Public Prosecutions: Independent and Accountable (1996) University of Western Australia Law Review, Vol. 26,
p. 268.
THE DUTY OF A PROSECUTOR
Carrying out the duties of a prosecutor is difficult. It requires solid professional judgment and legal
competence, a large dose of practical life experience and the capacity to work in an atmosphere of
great stress. Not everyone can do this. Moreover, there is no recipe that guarantees the right answer in
every case, and in many cases reasonable persons may differ. A prosecutor who expects certainty and
absolute truth is in the wrong business. The exercise of prosecutorial discretion is not an exact science.
The more numerous and complex the issues, the greater the margin for error.
-Morris Rosenburg -
The following principles are important and should be followed:
1. A prosecutor has an overriding duty to the Court to act with independence in the interests of
justice. He or she must assist the Court in the administration of justice, and must not deceive or
knowingly or recklessly mislead the Court.
2. A prosecutor is a minister of justice, an advocate, and an officer of the Court. The prosecutor
must adhere to the professional and ethical standards required of the profession.
3. A prosecutor must not, in his or her professional practice, discriminate unlawfully against,
victimise or harass any person on the basis of race, colour, ethnic or national origin, nationality,
citizenship, sex, gender or gender re-assignment, sexual orientation, marital or civil partnership
status, disability, age, religion or belief.
4. A prosecutor is individually and professionally responsible for his or her own conduct, and for
his or her own professional work, and must strive to exercise sound judgment in the course of
his or her professional activities.
5. A prosecutor must remain independent, and must not permit his or her absolute independence,
integrity and freedom from external pressures to be compromised.
6. A prosecutor must not do anything (for example, accept a present) in such circumstances as
may lead to an inference that his or her independence may be compromised.
7. A prosecutor must not compromise his or her professional standards to please his or her
instructing officer, the Court or a third party, including any complainant, witness, investigative
or referring authority.
8. Counsel for the prosecution, unlike counsel instructed for the defence in a criminal case or
counsel instructed in civil matters, owes a wider duty to the court and to the public at large to
conduct his or her case moderately, albeit firmly.
9. The prosecutor as a minister of justice must not strive for a conviction.
10. The purpose of a criminal prosecution is not to obtain a conviction; it is to lay before the Court
what the State considers to be credible evidence relevant to what is alleged to be a crime.
Counsel has a duty to see that all available legal proof of the facts is presented: it should be done
firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the
prosecutor excludes any notion of winning or losing; it is to be efficiently performed with an
ingrained sense of the dignity, the seriousness and the justness of judicial proceedings (see
Boucher v the Queen (1954) 110 CCC 263, 270).
4The first Director of Public Prosecutions for Western Australia and now the Hon. John McKechnie, Justice of the Supreme Court of Western
Australia
RESPONSIBILITIES OF PERSONS IN POSITIONS OF SUPERVISORY AUTHORITY
Diagram 1: Executive Management Structure
THE DPP
THE DEPUTY DPP
THE PRINCIPAL
ASSISTANT DPP x 4
ADMINISTRATIVE OFFICER
The Executive Management Team is responsible for providing legal and administrative advice to the
DPP. The Executive Management Team will assist the DPP in developing and implementing strategic
policies, which may include the provision of timely advice to the DPP on legal and administrative
policy matters when called upon to do so. The Executive Management Team shall be responsible for
formulating quality control mechanisms for the ODPP, and for conducting periodic risk management
reviews either collectively or individually at the behest of the DPP.
Diagram 2: Case Management Supervisory Structure
THE DPP
THE ALLOCATIONS MANAGER
THE DIVISIONAL MANAGER THE MANAGER
The Serious Fraud

The Western Division Division (Suva)
Lautoka District
Office The Child Protection
Nadi District Division (Suva)
Office
Ba District Office The General Crimes
Sigatoka District Division (Suva)
Office
Nausori District Office
The Northern Division
The Allocations Manager:
The Allocations Manager is a senior law officer appointed to this position by the DPP. The
Allocations Manager will generally be the Deputy DPP, or in the alternative, the senior most member
of the ADPP cadre or, thereafter, any other senior law officer so appointed.
The Allocations Manager will be responsible for the fair and equitable distribution of briefs at the
advice, trial and High Court appeal stages for Suva and Nausori; and at the Court of Appeal and
Supreme Court stages nationwide.
The Allocations Manager is responsible for supervising the allocations functions of the Divisional
Managers. This supervisory function will necessitate a periodic review (with no longer than a
year period between reviews) of all allocations undertaken within the Western and Northern
Divisions to ensure that allocations within the Divisions are undertaken in an equitable manner.
Any issues identified must be immediately brought to the attention of the Divisional Manager for
discussion and correction. The decision of the Allocations Manager, in respect of any allocations, will
supersede that of the Divisional Manager and in all instances, the decision of the DPP is final. A
record of any action taken in this regard must be reduced in writing and retained as an official
record of the ODPP.
These records will be reviewed periodically (but for no longer than a year between reviews) by
the DPP or any other staff member or members (the number of which is to be at the discretion of the
DPP) so appointed to this review panel by the DPP.
The Assistant Director of Public Prosecutions:
The Assistant Director of Public Prosecutions (ADPP) is responsible to the DPP and is required to
assist the DPP in the efficient management of the ODPP, both administratively and in respect of the
proper enforcement of the criminal laws of Fiji.
In this capacity, the ADPP as a member of the Executive Management team must be familiar with not
only the criminal laws of Fiji, but also the ODPP Prosecution Code, Code of Conduct, Human
Resource Manual, and the policies and directives issued by the DPP for the ODPP. The ADPP is
responsible for assisting the DPP and the DDPP monitor effective compliance with the Codes,
protocols, policies and directives of the DPP.
The ADPP must also assist the DPP and the DDPP in effectively safeguarding the institutional
independence and integrity of the ODPP. Any risks or breaches identified should be immediately
brought to the attention of the responsible Manager and, with the exception of the duties of
allocation where the decision of the Allocations Manager is final for these purposes, a viable solution
should be identified and implemented by both the ADPP and the Manager concerned.
In a situation where consensus is not reached within a reasonable time frame (to be determined by
the ADPP in accordance with the nature and magnitude of the identified risk), the solution directed
by the ADPP should prevail. In all instances, the direction of the DDPP will supersede that of an
ADPP and the direction of the DPP is final.
A record of any action taken in this regard must be reduced in writing and retained as an official
record of the ODPP. These records will be reviewed periodically (but for no longer than a year
between reviews) by the DPP and the DDPP or any other staff member or members (the number for
which is to be at the discretion of the DPP) so appointed to this review panel by the DPP.
A leader is one who knows the way, goes the way and shows the way.
- John Maxwell
The Divisional Manager:
The Divisional Manager is responsible to the DPP, and is required to assist the DPP in the efficient
management of the Division, both administratively and in respect of the proper enforcement of the
criminal laws within that Division.
In this capacity, the Divisional Manager must be familiar not only with the criminal laws of Fiji, but
also the ODPP Prosecution Code, the Code of Conduct, Human Resource Manual and the policies and
directives issued by the DPP for the ODPP.
The Divisional Manager is responsible for monitoring effective compliance with the Codes,
protocols, policies and directives of the ODPP within the Division and should immediately intervene
in any situation where, on any reasonable appraisal of the matter, a breach is imminent.
A record of any action taken in this regard must be reduced in writing and retained as an official
record of the ODPP. These records will be reviewed periodically (but for no longer than a year
between reviews) by the DPP and the DDPP or any other staff member or members (the number for
which is to be at the discretion of the DPP) so appointed to this review panel by the DPP.
The Divisional Manager is granted responsibility to allocate advice, trial and High Court appeal
briefs within the Division they head. In this respect they are subject to the direct supervision of the
Allocations Manager. Appeals must be handled in accordance with the protocols set out under The
Decision to Appeal at page 100.
Allocations must be undertaken in an equitable manner taking into account the District from which
the external file emanates; the positional responsibilities of each Officer; and current workloads.
The Divisional Manager is also responsible for reviewing advice work and legal submissions
prepared by the Officers under his or her charge. The Divisional Manager must ensure that the
Criminal Advocacy Support and Enquiry System (CASES) is updated. The protocol for updating
CASES is outlined at pages 19 and 20.
The Divisional Manager is ultimately responsible for monitoring the work of each Officer in the
Division, and must ensure that Officers are complying with all internal and Court set time-lines. The
Divisional Manager is also responsible for the administrative management of the entire Division in
conjunction with the PAO.
The Manager:
The Manager is responsible for reviewing advice work and legal submissions prepared by the
Officers under his or her charge.
The Manager is responsible for monitoring the work of each Officer within his or her supervisory
ambit and must ensure that these Officers are complying with all internal and Court set time-lines.
The Manager must ensure that the Criminal Advocacy Support and Enquiry System (CASES) is
updated. The protocol for updating CASES is outlined at pages 19 and 20.
The Manager has an obligation to assist the DPP, the DDPP, the ADPPs and the PAO in the efficient
management of the ODPP, with a particular emphasis on the proper enforcement of the criminal
laws of Fiji. To this end, the Manager should be familiar with Fijis criminal laws and procedures.
The Manager should also acquaint themselves with the provisions of the ODPP Prosecution Code,
the Code of Conduct, Human Resource Manual, and the policies and directives issued by the DPP for
the ODPP.
The Manager is responsible for monitoring effective compliance with the Codes, protocols, policies
and directives of the ODPP among the pool of officers they are required to supervise and should
immediately intervene in any situation where, on any reasonable appraisal of the matter, a breach is
imminent. A record of any action taken in this regard must be reduced in writing and retained as an
official record of the ODPP. These records will be reviewed periodically (but for no longer than a
year between reviews) by the DPP and the DDPP or any other staff member or members (the
number for which is to be at the discretion of the DPP) so appointed to this review panel by the DPP.
Diagram 3: Office Hierarchy (Legal)
Assist the DPP in the efficient management of the ODPP,

and in the proper enforcement of Fijis criminal laws. He
or she must assist the DPP to develop strategic policies
for the ODPP in line with the Constitutional powers and
responsibilities of the DPP; provide timely advice on
THE D/DPP legal and administrative policy matters; and develop and
implement quality control and monitoring mechanisms
for the ODPP at the behest of the DPP. He or she is
required to prosecute trials of a sensitive or complex
nature before the High Court, and will be required to
allocate, appear for, and supervise Supreme Court briefs.
He or she is responsible to the DPP for ensuring that
submissions and appearances before the Supreme Court
and Court of Appeal are undertaken by the right officer
and to standards befitting the dignity of these Courts.
Assist the DPP in the efficient management of the ODPP,

and in the proper enforcement of Fijis criminal laws. He
or she must assist the DPP to develop strategic policies
for the ODPP in line with the Constitutional powers and
responsibilities of the DPP; provide timely advice on
legal and administrative policy matters; develop and
implement quality control and monitoring mechanisms
ASSISTANT DIRECTOR OF
PUBLIC PROSECUTIONS for the ODPP at the behest of the DPP. The ADPP is
required to prosecute trials of a sensitive or complex
nature before the High Court as well before the
Magistrates Court. The ADPP will also be required to
prosecute appeals before the High Court, Court of
Appeal, and Supreme Court and will be required to
undertake quality control checks at the behest of the
DPP.
The PLO is responsible to the DPP for prosecuting trials

before the Magistrates Court and High Court, and for the
prosecution of appeals before the High Court, Court of
Appeal, and Supreme Court in addition to any other case
work assigned to the PLO at the behest of the DPP. In this
PRINCIPAL LEGAL OFFICER regard the PLO assists the DPP in the proper
enforcement of Fijis criminal laws. The PLO may be
required to assist the DPP in the efficient management of
the ODPP and where so required will need to work to the
standards required of the management position so
assigned. The PLO will need to be familiar with not only
the criminal laws of Fiji but also the Prosecution Code,
Human Resource Manual, policies and directives issued
by the DPP and may be called upon to assist in the
development and implementation of quality control and
risk management mechanisms within the ODPP.
FILE PROTOCOLS:
Advice
1. A file (the external file) is received from an investigative agency (the referring agency). The
referring agency will normally be the Police. The external file should only ever be received by
the Registry, and no legal officer regardless of rank should subsume this function. The external
file should contain photocopies only of all statements, documentary exhibits, internal
investigation notes etc. The original investigation file should be retained by the referring
agency.
2. The Registry is responsible for immediately entering the details of that external file into the
Case Advocacy Support and Enquiry System (CASES) and opening a physical internal file for
that matter. These tasks must be completed within 24 hours of the receipt of the external file at
the ODPP.
3. The internal and external files (the brief) must then be submitted by the Registry to the
Allocations Manager or the Divisional Manager (whichever is applicable). This too must be
completed within 24 hours of the receipt of the external file at the ODPP.
4. The Allocations Manager or the Divisional Manager is then responsible for allocating the brief to
State Counsel (the Officer). The Allocations Manager or the Divisional Manager must ensure an
equitable distribution of briefs commensurate with the experience and positional
responsibilities of each State Counsel.
5. Briefs should to be allocated to the District or the District Officer that has jurisdiction over the
matter. For example: an external file for an offence that allegedly occurred in Nadi, and which
therefore will be prosecuted out of the Nadi Magistrates Court, should be allocated to the Officer
based at the Nadi Office. When the Officer exits the ODPP or is transferred from one District
Office to another, the briefs do not automatically re-allocate to another or transfer with the
Officer. Instead, a proper hand-over to the Allocations or Divisional Manager must be
undertaken. In certain cases, allocations will be made to experienced Counsel regardless of
physical location in circumstances where the complexity of the brief warrants, on any
reasonable consideration of the matter, that allocation.
6. Once a brief is allocated to an Officer, he or she is responsible for that brief until such time as the
matter has been successfully resolved, either by the completion of the advice and the return of
the external file to the referring agency; discontinuation of the proceedings by the DPP;
termination of the proceedings by way of a court order, or by way of a conviction or an acquittal
at trial. The protocol for dealing with a brief once the Court has made a decision either by way of
a conviction or acquittal is outlined under The Decision to Appeal at page 100.
7. In certain instances, the Officer may feel unable to continue to retain carriage of the matter
(because of a scheduling conflict for example). In these instances, the Officer must raise this
issue with the Allocations Manager or Divisional Manager, who may thereafter decide to re-
allocate the brief. No Officer is to allocate the brief to another Officer in a manner inconsistent
with this process.
8. Legal opinions must be completed using the ODPP Analysis Template within 21 days of receipt
of the brief, unless this timeframe is expressly abbreviated or extended by the Allocations
Manager or the Divisional Manager in writing. The legal opinion must be submitted to the
Manager responsible for supervising the Officer (the Divisional Manager or the Manager)
within the required time frame. The Divisional Manager or Manager is responsible for reviewing
the legal opinion and must submit the brief along with his or her recommendations to the DPP,
within 7 days of receipt.
9. If the brief has been allocated for advice on whether or not there is sufficient evidence to sustain
criminal prosecutions, the Officer should prepare both a legal opinion (using the ODPP Analysis
Template) and an evidence matrix (using the ODPP Evidence Matrix template).
10. The Officer is required to conduct a preliminary analysis of the brief within 14 days of receipt.
To that end, the Officer is strongly encouraged to complete the evidence matrix (using the ODPP
Evidence Matrix template) within the first 14 days of receipt.
The purpose of this protocol is to enable the Officer to determine early on, within the 21 days
assigned for legal opinions, whether or not further investigations are warranted on the
evidence. If further investigations are warranted, then the preliminary opinion (or the evidence
matrix with an explanatory covering note) regarding those further investigations should be
submitted to the Divisional Manager or Manager within 14 days of State Counsels receipt of the
brief. Ultimately, this protocol is designed to avoid any delay in the finalisation of a decision in
respect of the brief.
11. The Divisional Manager or Manager is responsible for deciding whether or not further
investigations should be called for. If the Divisional Manager or Manager is of the view that
further investigations are required, she or he may direct the Officer to write to the referring
agency calling for these further investigations. Discretion regarding the necessity for further
investigations is vested in the Divisional Manager or Manager, and any decisions taken in this
respect should be noted down on the file and retained as an official record of the ODPP.
12. The Officer should submit the ODPPs request to the referring agency in accordance with his or
her instructions. (Officers should use the ODPP Letter to Police Further Investigations
Template). Within the body of that letter, the Officer should ask the referring agency to submit
the relevant information gathered in response to our request (photocopies only) to us within a
clearly set out time frame (for example: the Officer should specify the date and time the external
file is expected back at the ODPP). The time period for the conduct of the legal opinion does not
run during the period the external file is not physically at the ODPP.
13. The Officer will then be given a further 7 days to complete the advice from the date that the
investigative docket is returned. The final analysis, accompanied by a completed evidence
matrix, should then be submitted to the DPP through the Divisional Manager or Manager for the
DPPs consideration and decision.
14. The DPP may, if he considers it necessary, call for a second opinion from an Assistant Director of
Public Prosecutions (ADPP) or the Deputy DPP (DDPP). The ADPP or the DDPP is expected to
complete that second opinion and return the brief to the DPP within 7 days. The DPP may also
choose to discuss the legal analysis and/or the evidence matrix with the Officer before making
his decision on the brief.
15. Once the DPP has made his decision on the brief, it will be returned to the Officer to effect his
decision. The Officer must thereafter communicate the DPPs decision to the relevant referring
agency. If a decision is taken to instruct the brief out to the Police Prosecution Service or the
prosecuting branch of the referring agency, the external file should be returned with a covering
note (usually a letter) and a copy of the advice or the evidence matrix prepared by the Officer
and endorsed by the DPP (although the endorsement itself must not be visible on the copy
sent).
16. The note and advice sent to the Police Prosecutions Service will be by way of a memorandum
(using the ODPP Memorandum to the Police Prosecutions Service Template) and marked
Confidential and Legally Privileged.
17. Each movement of the brief must be noted in writing on the file and on CASES.
18. No file is to be submitted to another member of staff without a neatly written or typed covering
note on the blue minute sheets supplied by the Office for these purposes.
19. When instructing Counsel to appear for a matter on your behalf, the ODPP Instructions
Template must be used. All instructions issued to administrative staff in respect of the brief
must be noted in writing on the file and the language of these instructions must be expressed in
precise but courteous terms.
20. The language of any internal or external correspondence must be temperate, formal and
professional.
21. The ODPP uses four modes of written communication with external parties. They are
correspondence by way of:
(1) Letters
(2) Memoranda
(3) Emails
(4) Facsimile.
22. The Director of Public Prosecutions, as Constitutional head of the ODPP and as a matter of
protocol, directs that he is the only person authorised to write directly to:
(1) The President

(2) The Prime Minister
(3) A member of Cabinet
(4) A member of Parliament
(5) Another Constitutional appointee
(6) A Permanent Secretary
(7) The international equivalent of (1) to (6) above
(8) The head of any international organisation.
Letters
23. Letters must always be sent out using the ODPP Letterhead.
The Letterhead must contain the Coat of Arms, followed immediately by the words The Office
of the Director of Public Prosecutions (in capital letters). The Letterhead must also contain the
physical and mailing address of the ODPP Headquarters. This is because all official
correspondence sent to the ODPP should be addressed to the Director of Public Prosecutions.
The Letterhead must also contain the official telephone number of the Officer sending the letter
and the internal ODPP Reference for the matter being written about.
24. Further, the Footer of every page of the Letter must bear the words All official
correspondence to be addressed to the Director of Public Prosecutions.
25. The Letter must be reviewed, before sending, to ensure that it contains no grammatical, syntax
or spelling errors. Letters that commence with Dear Sir should end with Yours faithfully and
letters that commence with Dear Mr./Ms./IP should end with Yours sincerely.
26. Counsel must write using language that is courteous, temperate and professional.
27. Every letter sent by or on behalf of the ODPP must be signed using the following style:
Seini K. Puamau
Principal Legal Officer
for Director of Public Prosecutions
Emails
28. All official email accounts need to be regularly checked and emails should be responded to,
within 24 hours of receipt, where appropriate.
29. All official emails need to be typed using black font colour and the background needs to be
white. No other colour or pictures are to be used.
30. Do not include logos (e.g. the ODPP logo or the Coat of Arms) in the body of emails sent by or on
behalf of the ODPP. Do not add quotes of any sort to the ends of emails, both internal and
outgoing.
31. However, the ends of all official emails sent by or on behalf of the ODPP which contains
confidential information should contain the disclaimer: This email contains information that is
confidential and which may be subject to legal privilege. If you are not the intended recipient,
you must not read, use, distribute or copy the contents of this email. If you have received this
email in error, please notify me immediately and destroy the original.
32. When writing to a member of staff within the ODPP please adopt this format:
PLO (SV),
(Insert content)
Thank you,
SLO (FL).
This email contains information that is confidential and which may be subject to legal
privilege. If you are not the intended recipient, you must not read, use, distribute or copy
the contents of this email. If you have received this email in error, please notify me
immediately and destroy the original.
33. When writing to a person outside the ODPP please adopt this format:
Dear Mr. Smith,
(Insert content)
Yours sincerely,
Mr. Lisiate Fotofili
Principal Legal Officer
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS
25 Gladstone Road,
P.O Box 2355, Government Buildings,
SUVA, FIJI
Ph: (+679) 3211 567

Fax: (+679) 3304 789
This email contains information that is confidential and which may be subject to legal
privilege. If you are not the intended recipient, you must not read, use, distribute or copy
the contents of this email. If you have received this email in error, please notify me
immediately and destroy the original.
34. Do not use nicknames or any other forms of informal address when drafting official emails sent
by or on behalf of the ODPP.
35. The email must be reviewed, before sending, to ensure that it contains no grammatical, syntax
or spelling errors.
36. Courtesy, formality and uniformity are the rule for all official emails sent by or on behalf of the
ODPP.
Memoranda
37. A memorandum is a brief written message that contains directive, advisory or informative
matter which is sent from one person or one department in an organisation to another person
or another department within the same organisation.
38. It is for this reason that written messages between the ODPP and the Police Prosecutions
Service in respect of all prosecution matters are communicated via memorandums or memos.
39. Memos are only to be used:
(1) within the ODPP for formal administrative communication between staff;
(2) between the ODPP and the Police Prosecution Service in respect of prosecution
matters only (as the Police Prosecution Service is administratively under the aegis
of the Commissioner of Police); and
(3) between the ODPP and Working Groups that the ODPP is a part of, whether in
Government or otherwise.
40. Counsel must use the ODPP Memorandum Template and must ensure that all internal
administrative memos and all external Working Group memos are marked Confidential. All
memos to the Police Prosecution Service must be marked Confidential and Legally Privileged.
41. The memorandum must be reviewed, before sending, to ensure that it contains no grammatical,
syntax or spelling errors. Counsel must write using language that is courteous, temperate and
professional.
Facsimile
42. Like emails, and the post, the facsimile is a way through which messages may be passed on to
intended recipients.
43. All official messages communicated by or on behalf of the ODPP via facsimile must be sent out
with a Facsimile Cover Form (the ODPP Facsimile Cover Form Template must be used).
44. The Facsimile Cover Form should set out the name of the intended recipient, the name of the
sender and the date, and should list the documents that are being sent.
The difference between the right word and almost the right word is the difference
between lightening and a lightening bug.
- Mark Twain
Diagram 1:
Diagram 2: Advice Template
ANALYSIS
OFFICE FILE NUMBER
TO: DPP
UFS: (TYPE IN NAME OF MANAGER, POSITION HELD)
RE: STATE v.
CRIMINAL CASE NO:
POLICE DOCKET NO:
INVESTIGATING OFFICER:
BACKGROUND:
How the file came to be in our Office.

What is the current status of the matter?
What is the instructing note given to you regarding the file?
FACTS OF THE CASE:
Only set out those facts which are essential to each essential element of an offence, and those facts which are essential to a possible
defence, or possible defences.
ISSUES:
For a potential prosecution, the issues are generally: (1) whether or not there is sufficient evidence to sustain criminal prosecutions, and
(2) whether or not it is in the public interest to prosecute.
For a potential appeal, the issues are: (1) whether or not there are merits to an appeal, (2) whether or not the appeal is within time, and
(3) whether despite the merits to an appeal, an appeal is justified (i.e. whether or not a substantial miscarriage of justice has occurred).
LAW:
When canvassing the law, set out the possible offences available on the evidence, set out the essential elements of each offence, and
discuss the relevant and most up to date authority on any available defences.
ANALYSIS:
The analysis should not be a regurgitation of the facts. Nor should it be a simple marrying of the essential facts to the essential
elements. The analysis should filter the evidence pertinent to each essential element. The prosecutor should consider whether or not
the evidence that Counsel intends to rely on is admissible. If it is not, then it cannot be used in Court. The prosecutor should then
consider whether there is now sufficient evidence in respect of each essential element. The prosecutor should only consider those
public interest factors which are directly relevant to the case in question. If there are no relevant public interest considerations
relevant to the brief then not too much time need be spent on this issue.
RECOMMENDATIONS:
Recommendations should be in bullet form and succinct. The recommendations should set out whether or not there is sufficient evidence
to proceed, and the charges that can be sustained on the evidence. If the evidence is insufficient in respect of one or all elements, the
prosecutor needs to set out the appropriate next course of action for the DPPs sanction. A recommendation regarding possible defences
needs to be made; and if public interest is an issue, then a recommendation regarding that public interest consideration is necessary. In
short, set out recommendations regarding the key issues canvassed in the body of your advice.
Respectfully submitted,
Signature
Name of Counsel
Rank
Date
RECOMMENDATIONS BY MANAGER:
DECISION OF THE DPP

Diagram 3: Overview
Recieve File Date of Receipt
Read &
Understand your Read the instructing minute & comply
instructions
Advise File note your efforts.
Note movement
Re-Submit on CASES.
Diagram 4: Preparing your Advice
Read and Take notes

understand Read the Office
and pick out
your file & the Police
the issues for
instructions. Docket. consideration.
For Defences see

Carefully Take note of
Chapter II, Part 6 consider the any defences
of the Crimes admissibility raised or
Decree, 2009 of the available on
evidence the evidence.
being perused.
Diagram 5: Advice Format
PAPER Minute Sheets

All legal opinions are to be presented on blue minute sheets specifically purchased by the Office of the
Director of Public Prosecutions for this purpose.
PROOF READ Cross-Check and Refine

The official languge of the Office of the Director of Public Prosecutions and the Court is English (U.K).
Abide by the rules of English grammar. Avoid spelling and syntax errors.
STRUCTURE Aspire to clarity, cogency and cohesiveness
Space left margin - 2 1/2 inch. Font - Times New Roman. Font Size - 12.
Line Spacing- 1 1/2. Spacing (Before and After )- 0.
CASES
The Office of the Director of Public Prosecutions has invested in an electronic case management tool.
The Criminal Advocacy Support and Enquiry System (CASES) allows the user to track and manage
any brief handled by the ODPP. It has been designed by the ODPP to suit the work flow of State
Counsel, Litigation Clerks and other members of staff. It is a dynamic, easy to use system that can be
updated quickly to reflect progress on a case, as well as changes in office policy and procedures
relevant to case work.
The four main purposes of CASES are:
File tracking
Each officer should note down the date and time a file leaves or arrives at his or her desk.
Practice management
The Allocations Manager, Divisional Manager and Manager should monitor CASES regularly to
ensure that his or her Officers are complying with internal and Court set deadlines.
Management reports
The Allocations Manager should prepare weekly reports for the DPP. These reports should be
copied to the ADPPs.
Statistics
The Registries should prepare quarterly reports for the DPP.
Every legal officer must update CASES after every court appearance by the officer who appeared. If
for some reason it cannot be done straight after the court appearance then, without fail, it must be
done before the officer goes home that day. It is the responsibility of the officer who appeared to
update CASES not Registry staff. No files should be given to Registry staff for updating.
Diagram 1: Updating CASES
Step 1:
From the Matters menu select Matter

Management, as displayed below. You
are now in the MATTER SEARCH SCREEN.
Step 2:
Type the matter number/external

reference/surname and or given name in
the labelled fields e.g. Matter No. and
press Enter or click on the Search
button in the toolbar at the top of the
MATTER SEARCH SCREEN. When you enter
the matter number the other search
criteria become inactive.
You are now shown the Matters tab and

the matter resulting from the search may
be shown. Select the matter by double
clicking on the row or pressing enter.
Step 3:
Select the relevant listing so that an arrow is shown on the far left hand side of the
listing.
Click on the drop down arrow in the Result field
Select the correct Result.
Effective leadership is putting things first. Effective management is discipline,

carrying it out.
-Stephen Covey-
THE MENTIONS TEAM
INTRODUCTION:
The Mentions Team (MT) is comprised of Legal Officers (MT LO) who come under the supervision
of the Mentions Team Manager (MTM). The MTM is an LO appointed to this position by the DPP.
There are 10 members of the MT, inclusive of the MTM. The MT is responsible for attending to
mention matters before the Magistrates Court of Fiji at Suva, Nasinu and Navua and the MTM is
responsible for coordinating these appearances.
The MT only appears for mention and other relatively straight-forward matters, which can include
first call, bail hearings, mentions, sentencing and judgment. Prosecutors are expected to appear
personally for pre-trial conferences and trials.
It is compulsory that all Prosecutors use the MT for mention matters before the Magistrates Court.
However, in circumstances where a Prosecutor intends to appear in person for a mention matter, he
or she must first notify the MTM of that fact before 2.30pm the day before the scheduled
appearance.
In these instances, the MT LO assigned to that Court will apply to have the matter stood down until
the Prosecutor is able to personally appear.
STEP 1:
Prosecutors are expected to identify the Magistrates Court matters which are listed for mention
only, and prepare complete instructions for these mention matters. The file and the complete
instructions (which must be prepared using the ODPP Instructions Template) are to be submitted to
the MTM by the Prosecutor in carriage, no later than 2.30pm on the day prior to the scheduled
appearance.
STEP 2:
The Registry distributes the Cause List generated from CASES along with the Cause List received
from the Magistrates Court Registry to the MTM, as a matter of priority, a day before the scheduled
appearances. Upon receipt of the Lists, the MTM circulates them to the MT LOs via email.
The MT LOs are then expected to respond to the email and indicate the Court before which they
intend to appear. In exceptional circumstances, the MTM may unilaterally allocate Courts to Officers
within the MT. This, however, is usually only done in instances where there is a high volume of
mention matters and not enough MT LOs available to cover all courts, i.e. as a result of leave or
individual trial commitments.
STEP 3:
Whenever there are scheduled mentions before the Magistrates Court at Nasinu and/or Navua, the
MTM will submit a Vehicle Request Form (using the ODPP Vehicle Request Form template) to the
ODPP Transport Coordinator. The Vehicle Request Form should be submitted a day prior to the
expected appearance.
STEP 4:
The MTM will receive files on instructions for the MT throughout the course of a day, but no later
than 2.30pm on the day prior to the scheduled appearance. This receipt must be entered into the
inward section of the Inward/Outward Register supplied to the MT, and retained by the MTM, for
this purpose. The MTM will enter the particulars of the file, the date and time of the receipt, and the
name of the instructing Prosecutor as part of that inward entry.
STEP 5:
The MTM will then dispatch files to members of the MT in accordance with the Courts each MT LO
has volunteered to appear before. This first outward entry must be noted in the outward section of
the Inward/Outward Register.
STEP 6:
Upon return from Court on the day of the scheduled appearance, the MT LO is expected to update
CASES immediately. A copy of the appearance return generated should then be signed and placed in
the respective file. The MT LO is expected to note the next date on the cover of the ODPP red file.
(The Appearance Return (On Instructions) Template should be used during the appearance and
included in the file alongside the CASES generated return).
In instances where a Bench Warrant has been issued during the course of a mention matter, the MT
LO is expected to email the Suva Registry and the Officer handling the brief to notify both these
parties of that fact. The email should contain the particulars of the Bench Warrant, and should
include a request to the Suva ODPP Registry to uplift the Bench Warrant from the relevant
Magistrates Court Registry and dispatch it to the Officer. A copy of that email should be printed out
by the MT LO and placed in the file alongside the appearance returns.
STEP 7:
The MT LO is then responsible for returning the file to the MTM. This will be marked in the inward
section of the Inward/Outward Register and once all files have been received back from the MT, the
MTM shall notify the ODPP Suva Registry and a member of staff from the Registry shall be
responsible for dispatching each file back to the Prosecutor in carriage. This second outward entry
must be noted in the outward section of the MT Inward/Outward Register.
STEP 8:
In respect of mention matters forwarded from an outer District for appearances in Suva, Nasinu and
Navua, the ODPP Registry should forward these files to the MTM by or before 2.30pm, a day prior to
the scheduled appearance. This means that the Prosecutor in carriage must submit the file two days
before the scheduled appearance (if submitted by the Western and Northern Divisions) or the
morning of the day prior to the scheduled appearance (if submitted by the Eastern Division) in
order to enable this file handover to occur within time.
In all instances, after the appearance in Suva, Nasinu or Navua, the MT LO who appeared for the
matter is expected to return the file to the MTM after having complied with protocol 6. The MTM
will be responsible for ensuring that the file is dispatched to the ODPP Suva Registry for EMS to the
Division that file emanated from. The MT LO who appeared for the matter is expected to email the
Prosecutor in carriage a soft copy of the appearance return, and indicate that the file is in transit
back to the District Office from which it emanated.
Surround yourself with a loyal and trusted team. It makes all the difference.
- Alison G. Pincus
APPEARANCES THROUGH THE COURT SYSTEM
Explanatory Note:
State Counsel are allocated briefs to prosecute. The matter is first called before the Magistrates
Court of Fiji. If a summary matter, the trial will take place in the Magistrates Court. If the matter is
indictable it will be transferred to the High Court, or if an indictable matter triable summarily, and
the accused elects a High Court trial, the matter may be transferred to the High Court.
The matter may also be transferred to the High Court for sentence. With the exception of matters
that have been transferred to the High Court for sentence or election by an accused, the High Court
may choose to remit the matter back to the Magistrates Court pursuant to Section 4 (2) of the
Criminal Procedure Decree 2009, by effectively extending the jurisdiction of the Magistrates
Court to try a case that would otherwise be beyond its jurisdiction to try. There is no power to
extend a Magistrates jurisdiction on sentence.
FAULT ELEMENTS
The shift in terminology from mens rea to fault element at Section 18 of the Crimes Decree 2009
better reflects the common law development in the area of criminal culpability. Criminal law in Fiji
has moved away from the proposition that for a person to be guilty, he or she must have the
requisite guilty mind only i.e. intention, knowledge, willfulness, malice etc. In the case of a strict
mens rea offence, a person is assessed subjectively and is penalized only for his or her morally
defective choices.
Criminal jurisprudence has expanded criminal liability to include instances of recklessness or

negligence; an objective assessment of morally defective conduct giving rise to criminal culpability.
Fault simply means culpability or blameworthiness.
Intention, knowledge, recklessness and negligence are specifically defined in the Crimes Decree
2009 at sections 19 to 22. Section 23 of the Crimes Decree 2009 provides that in respect of
offences that do not specify fault elements, the following default fault element will exist:
23. (1) If the law creating the offence does not specify a fault element for a physical element
that consists only of conduct, intention is the fault element for that physical element.
(2) If the law creating the offence does not specify a fault element for a physical element that
consists of a circumstance or a result, recklessness is the fault element for that physical element.
It follows then that in order for a crime to be one of strict liability or absolute liability, the law must
expressly make it so.
STRICT LIABILITY
Pursuant to Section 24 of the Crimes Decree 2009:
(1) If a law that creates an offence provides that the offence is an offence of strict liability (a) there are
no fault elements for any of the physical elements of the offence; and (b) the defence of mistake of fact
under section 35 is available. (2) If a law that creates an offence provides that strict liability applies to
a particular physical element of the offence (a) there are no fault elements for that physical element;
and (b) the defence of mistake of fact under section 35 is available in relation to that physical element.
(3) The existence of strict liability does not prevent an offender from raising any other defence that is
applicable to the offence for which he or she is charged.
For example, involuntariness pursuant to Section 16 (3) of the Crimes Decree 2009 or the common
law defence of absence of fault, or reasonable care.
ABSOLUTE LIABILITY
Pursuant to Section 25 of the Crimes Decree 2009, (1) if a law that creates an offence provides that
the offence is an offence of absolute liability (a) there are no fault elements for any of the physical
elements of the offence; and (b) the defence of mistake of fact under section 35 is unavailable. (2) If a
law that creates an offence provides that absolute liability applies to a particular physical element of
the offence (a) there are no fault elements for that physical element; and (b) the defence of mistake of
fact under section 35 is unavailable in relation to that physical element. (3) The existence of absolute
liability does not prevent an offender from raising any other defence that is applicable to the offence
for which he or she is charged.
For example, involuntariness pursuant to Section 16 (3) of the Crimes Decree 2009, or denial of
the charge.
THE LOCUS CLASSICUS PRESUMPTION THAT MENS REA IS AN ESSENTIAL ELEMENT OF AN
OFFENCE
Western Electric Co Ltd v Comptroller of Customs [1964] FJCA 2; [1965] 11 FLR 8 (4

September 1964)
What is usually regarded as locus classicus on this subject is the dictum of Wright J.
in Sherras v. De Rutzen [1895] 1 QB at p. 921:
"There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness
of the act, is an essential ingredient in every offence; but that presumption is liable to be
displaced either by the words of the statute creating the offence or by the subject-matter
with which it deals, and both must be considered."
THREE CATEGORIES OF OFFENCES -MENS REA OFFENCES, STRICT AND ABSOLUTE LIABILITY
OFFENCES
DPP v Coya (Construction) Pty Ltd [1983] FJCA 7; [1983] 29 FLR 29 (28 July 1983)
In the Sault Ste Marie case the Supreme Court of Canada recognised three categories of
offences: (1) those in which mens rea such as intent, knowledge or recklessness must be proved
by the prosecution; (2) those in which the prosecution need not prove mens rea but the
accused may avoid liability by proving all reasonable care ('strict liability'); (3) absolute
liability."
Frequently in the past "strict" liability and "absolute" liability have been regarded as
synonymous. But they are not so semantically. "Absolute" admits of no exception. "Strict"'
merely means stringent or rigorous. One will look with interest to see if these useful
designations will be more widely adopted.
A FOURTH CATEGORY THE STRAWBRIDGE APPROACH
State v Hong Kuo Hui [2005] FJHC 732; HAC40.2004 (2 May 2005)
The four categories of offences that operate in instances where the statute does not state a
mens rea offence are:
(a) Implied Mens Rea: The prosecution has both a persuasive and an evidential burden to
prove mens rea. Once the prosecution has proved mens rea, then in the absence of
evidence to contrary (ie. a defence is raised or the defence raises a reasonable doubt)
mens rea is presumed.
(b) The Strawbridge Approach: "Requires, in addition to some evidence that the accused
had an honest belief in facts which would make his act lawful, some evidence or basis for
thinking that it was on reasonable grounds; in which event the onus falls on the
prosecution to disprove honest belief on reasonable grounds," per Cooke P at 665.
(c) Strict Liability: The prosecution is required to prove the actus reus, but in relation to one
or more elements of the actus reus, there is no mens rea element to prove. However, the
defendant can prove absence of fault in his part in order to exculpate themselves.
(d) Absolute Liability: The offence is complete upon proof of the actus reus. There is no
requirement to prove mens rea; neither can the defendant claim an absence of fault in his
or her own defence.
HOW TO DETERMINE WHETHER AN OFFENCE IS ONE OF STRICT OR ABSOLUTE LIABILITY
State v Hong Kuo Hui [2005] FJHC 732; HAC40.2004 (2 May 2005)
In order to determine whether an offence is one of strict or absolute liability, the following are
also determinants:
Where absolute liability may be a necessary implication, for example in tax law where
failing to file a tax return automatically elicits liability otherwise a range of excuses could be
used to defer the filing of a return in time. See IRD v Thomas [1989] 13 TRNZ 697.
The presence of an evaluative term in the actus reus, such as "fair" or "reasonable" as such
terms cannot be determined with sufficient certainty in advance and problems of fair
warning arise.
The absence of words such as "knowingly" or "willfully" indicating in context the absence of
a mens rea component.
Absolute liability should be threatened in clear terms, so that the defendant knows in
advance what the boundaries of the offence are. See Re Wairarapa Election
Petition [1988] 2 NZLR 74, 117.
The severity of the penalty prescribed for the breach should not be too high. "It is contrary to
sense and justice that a person should be subject to the ultimate penalty, no matter how
careful or innocent he may be", Re Wairarapa Election Petition, at 117.
If the statute itself specifies a defence, this points to there being an absolute liability offence.
See McLaren Transport Ltd v MOT [1986] 2 NZLR 81, 83.
If the statute expressly describes an offence as being one of "strict liability", or provides that
it need not be proved that a defendant "intended" the relevant conduct, this supports the
availability of the defence of a total absence of fault: Buchanans Foundry Ltd v
Department of Labour [1996] 3 NZLR 112.
IN SUMMARY
Intention, knowledge, recklessness, negligence. If a statute does not expressly make an
offence one of strict or absolute liablity, then intention is the default fault element for all
1 crimes where the physical element is one of conduct, and recklessness is the default fault
element for all crimes where the physicial element is one of circumstance or result.
Strict Liability: Offence complete upon proof of the physical element only but a defence of
2 involuntariness, mistake of fact, absence of fault or taking all reasonable care is available.
Absolute Liability: Offence complete upon proof of the physical element only. Defence of
mistake of fact, absence of fault or taking all reasonable care is NOT available. Defences
3 negating voluntariness of the conduct or denial may be raised.
DOLI INCAPAX
Pursuant to Section 26 of the Crimes Decree 2009, A child under 10 years old is not criminally
responsible for an offence.
However, pursuant to Section 27, (1) A child aged 10 years or more but under 14 years old can only
be criminally responsible for an offence if the child knows that his or her conduct is wrong. (2) The
question whether a child knows that his or her conduct is wrong is one of fact. The burden of proving
this is on the prosecution.
DK v Rooney & Anor (unreported, Supreme Court of NSW, 3/7/96)
On consideration of the authorities it is quite clear that in order to rebut the presumption of doli
incapax it must be established by the prosecution beyond reasonable doubt not only that the child
did the act in the circumstances which would involve adult criminal liability, but also that what
he was doing was wrong. The knowledge is not to be presumed from the mere fact of the
commission of the act, but it must be proved aliunde and may be proved inter alia by the
circumstances attending the act, the manner in which it was done and the evidence as to the
nature and disposition of the child concerned. The burden of proving that the childs knowledge is
wrong is on the prosecution, so at the conclusion of the evidence the prosecution must fail if the
court is not satisfied beyond reasonable doubt of the childs guilt.
R v Vito Meola (1999) NSWCCA 388.
The presumption of doli incapax is not a defence; it is an element of the prosecution case. If the
prosecution fails to call evidence to rebut the presumption there is no case to answer. If, at the
conclusion of the prosecution case there is evidence that could satisfy a jury, the hearing or trial
will proceed. In some cases the defence may elect to call evidence in the defence case. Ultimately,
it is for the Magistrate or jury to determine at the end of the case whether this element has been
established beyond a reasonable doubt. That is, it is for the Crown to establish to the criminal
standard that the alleged offender had the capacity which the law requires.
C v DPP (1996) 1 AC 1 at 38C, per Lord Lowry
A long uncontradicted line of authority makes two propositions clear. The first is that the
prosecution must prove that the child defendant did the act charged and that in doing that act he
knew that it was a wrong act as distinct from an act of mere naughtiness or childish mischief.
The second clearly established proposition is that the evidence to prove the defendants guilty
knowledge, as defined above, must not be the mere proof of the doing of the act charged, however,
horrifying or obviously wrong that act may be. As Erle J said in Reg v Smith (Sydney) (1845) 1 Cox
CC 260
a guilty knowledge that he was doing wrong , must be proved by the evidence, and cannot be
presumed from the mere commission of the act. You are to determine from a review of the
evidence whether it satisfactorily proved that at the time he fired the rick (if you should be of
the opinion he did fire it) he had a guilty knowledge that he was committing a crime.
It is important to note that the requirement at Section 27 (2) of the Crimes Decree 2009 imposes
an additional element for the Prosecution to prove i.e. that the child accused knew that his or her
conduct was wrong.
In State v K.R.A.K Judgment [2013] FJHC 703; HAC73.2013L (15 July 2013), the High Court of Fiji,
assisted by a panel of three (3) assessors, found the child accused (approx. 11 years old) guilty of
manslaughter. Indeed, as the evidence developed, it became apparent at trial that a charge of
murder was available. This case is clear support for the proposition that a child who is between
the ages of 10 and 14 years old can and should be held fully responsible for his criminal acts.
In proving knowledge, the State can have recourse to any or a combination of the following:
Statements/admissions made by the child.
For example: in State v K.R.A.K, supra, the child accused admitted that:
(i) He had had gun safety training in school.

(ii) He had witnessed a relative use the same gun to shoot and kill a pigeon within a
few hours of the incident.
Behaviour of the child before and after the act.
For example: in State v K.R.A.K, supra, after the shooting, the child accused hid behind one of
two trucks. He only came out after relatives had rushed the shooting victims to the hospital.
When a labourer came upon him he said, Slap me. I did it. I am guilty.
Evidence of parents/ home background.
Evidence of teachers.
Evidence of psychologists/ psychiatrists.
IN SUMMARY
Section 27 (1) creates an additional element i.e. knowledge - that at the time of
committing the offence, the child offender knew that what he or she was doing
1 was wrong.
The burden of proving this additional element rests with the State and never
2 shifts.
The additional element must be proved, on the facts, beyond reasonable doubt.
3
THE CHARGE:
DEFINITIONS:
Offence: A specified transgression of the criminal or regulatory law. An offence may be against the
common law or against the provisions of statutes, or subordinate legislation. (Contrast: Section 2
of the Crimes Decree 2009.)
Source: Butterworths Concise Australian Legal Dictionary, 2004
Element: In relation to an offence, a constituent part of the offence, either an essential component
of the offence as defined, or a part of the offence as it was actually committed ; element is an
equivocal word: Kaporonovski v R (1973) 133 CLR 209 at 238; 1 ALR 296 at 314; Re Hamilton-
Byrne [1995] 1 VR 129
Source: Butterworths Concise Australian Legal Dictionary, 2004
Fault Element: The state of mind required to constitute a particular crime; He Kaw The v. R (1985)
157 CLR 523; 60 ALR 449.
There may be alternate fault elements for an offence and these may include intention,
recklessness, negligence, dishonesty, or malice.
Diagram 1: Preparing the Charge
Ensure that your

particulars cover the The decision to
essential elements of prosecute is made.
the offending.
For Elements see

Chapter II, Part 5 of
the Crimes Decree
Identify the Identify the
2009 date and place legislative
of the provision
offending. breached.
Identify the
person or
persons who
need to be
charged.
THE PROSECUTION CODE TEST
Para 8.1
of the Prosecution Code 2003
Prosecutors should select charges which:
(a) Reflect the seriousness of the offending;
(b) Give the court adequate sentencing powers;
(c) Enable the case to be presented in a clear and simple way; and
(d) Adequately reflect the true criminality of the offender's conduct.
Prosecutors should not continue with more charges than are necessary. They should not lay more charges
than are necessary just to encourage an accused to plead guilty to a few. They should never lay a more
serious charge just to encourage an accused to plead guilty to a lesser charge.
THE TEST FOR PROSECUTION
Prosecuting is the art of the possible; you can only prosecute if you have evidence.
-Sir David Calvert-Smith QC -
Paragraph 5 of the Prosecution Code 2003 provides:
5.1 No person in Fiji shall be prosecuted unless there is sufficient evidence and it is in the public
interest to prosecute
5.2. The first step is to be sure that there is a reasonable prospect of a conviction. This is an
objective test, which includes an assessment of the reliability of evidence, and the likely defence
case. The test is, whether a court, properly directed in accordance with the law is more
likely than not, to convict the accused of the charge alleged.
There are two stages that the prosecutors analysis of the brief must address in arriving at a decision
to prosecute. These stages are the evidential stage and the public interest stage.
Sufficiency of Evidence:
The prosecutor must first be satisfied that there is sufficient evidence to provide a reasonable
prospect of conviction against each accused person on each charge proffered. The prosecutor must
consider the admissibility and reliability of each piece of evidence contained in the brief. The
prosecutor must also consider the likely defence case and assess the likely effect this may have on
the prosecution case.
In assessing whether or not there is sufficient evidence to provide a reasonable prospect of

conviction, the prosecutor must objectively consider whether or not a judge, assisted by assessors
properly directed in accordance with the law, or a magistrate, will more likely than not convict the
accused person of the charge alleged. If the answer is yes, than the charge can proceed. If the answer
is no, then it must not go ahead, no matter how important the case or serious the charge itself may
be.
The Public Interest:
If the prosecutor assesses that there is sufficient evidence to sustain criminal proceedings, then the
prosecutor must decide whether or not a prosecution is needed in the public interest. The
prosecutor must balance factors for and against prosecutions fairly and objectively. Generally,
criminal proceedings will be instituted unless the factors against prosecutions are clear and cogent.
For more information on the public interest please see Section 7 of the Prosecution Code 2003.
IN SUMMARY
Is there a reasonable prospect of conviction?

1 See Para. 5 of the Prosecution Code 2003.
Is it in the public interest to prosecute?

2 See Para. 7 of the Prosecution Code 2003.
A Charge may only be filed if the response to both 1 and 2 is "YES".

3
THE CHARGE FORMAT:
Section 58
Every charge or information shall contain -
(a) A statement of the specific offence or offences with which the accused person is
charged; and
(b) Such particulars as are necessary for giving reasonable information as to the
nature of the offence charged.
Note: The prosecutor must use the forms that apply or which have been approved by the
Criminal Procedure Decree 2009 (or forms conforming to the applicable or approved forms as
near as may be). (See s. 61 (6)). The forms under the Criminal Procedure Code, Cap. 21 apply mutatis
mutandi (See s.300).
Each Count should start with a Statement of Offence which describes the offence shortly and in
ordinary language, avoiding as far as possible the use of technical terms, and without necessarily
stating all the essential elements of the offence.
The Statement of Offence should also include a reference to the section of the law creating the
offence (s.61 (1) (3)). As a matter of good practice, the Statement of Offence should include the
section and sub-section of the law creating the offence, particularly in circumstances where
different physical and fault elements apply.
After the Statement of Offence, the Count should contain the Particulars of Offence which shall be set
out in ordinary language. The use of technical terms is unnecessary.
If any rule of law, Act, Decree or Promulgation limits the particulars of offence required to be given
on the Charge or Information, then it is enough if the prosecutor gives only those particulars so
required (s. 61 (4) (5)). As a matter of good practice, the Particulars of Offence should contain a
short factual narrative relevant to each element of the offending.
Where a Charge or Information contains more than one count, the Counts are to be numbered
consecutively. (s.61 (7))
STATUTORY PROVISIONS FOR CHARGING ACTS OR OMMISSIONS IN THE ALTERNATIVE
Where a statute prescribes an offence to be (a) the doing or the omission to do any one of any
different acts in the alternative; or (b) the doing or the omission to do any act in any one of any
different capacities, or with any one of different intentions; or (c) states any part of the offence in
the alternative; the acts, omissions, capacities or intentions or other matters stated in the
alternative in the statute, may be stated in the alternative in the count charging the offence.
It shall not be necessary in any count charging an offence to negative any exception or exemption
from, or proviso or qualification to, the operation of the statute creating the offence. (s. 62, CPD 09)
DESCRIPTIONS:
General Rule:
Subject to other provisions in the Criminal Procedure Decree 2009, places, times, things, matters,
acts or omissions, shall be described in ordinary language and with sufficient clarity. (s.66, CPD 09)
Persons:
The description or designation on the Charge or Information needs to be reasonably sufficient to

identify the person without necessarily stating the correct name, place of residence, style, degree or
occupation.
If the persons name is not known, or if it is impracticable to give the description or designation
required, then the person may be described as a person unknown, or by a description or
designation reasonably practicable in the circumstances.
A court may dispense with any requirement to expressly name or identify a person on grounds
relating to the safety of the person, or for reasons of public security. (s.64, CPD 09)
Documents:
If the Prosecutor needs to refer to a document in a Charge or Information, it is sufficient to set out
the name or designation by which it is usually known; or to describe it by its purpose. (s.65, CPD 09)
Example: ANZ Bank Cheque No: 123456 as opposed to Australia and New Zealand Banking
Corporation Limited Cheque No: 123456.
Statement of Intent:
If intention to defraud, deceive or injure is not an essential element, the Prosecutor need not include
a statement of that intent in the Charge or Information. (s.67, CPD 09)
Figures and Abbreviations:
Figures and abbreviations may be used to express anything usually expressed in figures or in
abbreviations. (s.69, CPD 09) Example: FJD$1.00.
Charging for Previous Convictions:
Counts that allege a previous conviction should be included at the end of a Charge or Information by
means of a statement that the accused person has been previously convicted of that offence at a
certain time and place. No description of the particulars of that offence is to be included. (s.68, CPD
09)
Breach of a suspended sentence contrary to Section 28 of the Sentencing and Penalties Decree
2009 is one example of a charge that includes a previous conviction. The Prosecutor should, as a
matter of practice, split a Charge or Information that includes a Breach of a suspended sentence, by
severing the count alleging the Breach when an accused has entered a plea of not guilty to the
substantive count or counts on that Charge or Information.
The rationale for the recommended severance is the general prohibition against the Prosecution
putting character evidence against an accused person during trial. A Charge or Information that
refers to a previous conviction during the course of trial for other offences is potentially prejudicial
to an accused in respect of those other offences.
Property
63.(1) The description of property in a charge or information shall be
(a) In ordinary language; and

(b) Such as to indicate the property referred to with reasonable clearness.
(2) It shall not be necessary to name the person to whom the property belongs or the value of the
property, unless this is required for the purpose of describing an offence depending on any
particular ownership of property or specific value of property.
(3) Where the property is vested in more than one person, and the owners of the property are
referred to in a charge or information, it shall be sufficient to
(a) Describe the property as owned by one of those persons by name with others; or
(b) To use a collective name without naming any individual if the persons owning the property
are a body of persons with a collective name, such as a company or Inhabitants, Trustees,
Commissioners or Club, or other such name.
(4) Property belonging to or provided for the use of any government or public establishment,
agency, service or department may be described as the property of the State.
(5) Coin and currency notes may be described as money, and any allegation as to money, so far as
regards the description of the property, shall be sustained by proof of any amount of coin or
currency note (although the particular species of coin of which such amount was composed or the
particular nature of the bank or currency note shall not be proved).
(6) In cases of theft, embezzling or defrauding by false pretences, any allegation as to money shall
be sustained by proof that the accused person dishonestly appropriated or obtained any coin or any
currency note (or any portion of the value of it), although the coin or bank or currency note may
have been delivered to the accused person in order that some part of the value of it should be
returned to the party delivering it (or to any other person), and such part shall have been returned
accordingly.
(s 63, CPD09)
JOINDER
JOINDER IN A CHARGE OR INFORMATION

Any offence may be charged together in the same charge or information if the offences
charged are:
(a) founded on the same facts or form; or

(b) are part of a series of offences of the same or similar nature.
Charges must have a common factual origin.
R v. Barrell and Wilson (1979) 69 Cr.App.R 250

EXAMPLE 1 Section 59 (1) (a) of the Criminal Procedure Decree 2009
On 13 September 2012, Benjamin Wolf crept into Robin Woodcutters home (31 Natokowaqa Lane,
Lautoka).
He waited behind the kitchen counter for Red Riding Hood to enter.
When she did, he pounced from behind the counter and he gobbled her up in one bite. Red Riding
Hood lost her life.
LAUTOKA PEP 58/11 CPC FORM 4

EXAMPLE 2 Section 59 (1) (b) of the Criminal Procedure Decree 2009
On 10 August 2012, Robin Hood spied the Sheriffs taxman (Lincoln Green) walking through Shirley
Park, Lautoka. He attacked him with a wooden staff and brought him down. He then stole two bags
containing 50 gold coins each, being tax money collected from a nearby village.
On 15 September 2012, Robin Hood spied Bishop Merry Winters carriage travelling through
Churchill Park, Lautoka. He held up the carriage with a long bow and threatened to kill the driver if
the Bishop did not surrender his valuables. The Bishop surrendered a bag containing 10 gold coins;
a golden chalice; and an 18 carat ruby ring. Robin Hood scooped these items up and made his
escape.
Lautoka PEP58/11 C.P.C Form 4

I.O SP4303 FILIMONI JOLIE
CRIMINAL PROCEDURE DECREE, 2009
(Section 56) FIJI
In the Magistrates Court at LAUTOKA Criminal Case No:
CHARGE
(COMPLAINT BY PUBLIC OFFICER
Count 1
Statement of Offence
Aggravated Robbery: Contrary to Section 311 (1)(b) of the Crimes Decree, 2009.
Particulars of Offence
Robert of Locksley on the 10th day of August 2012, at Lautoka in the Western Division, being
armed with a wooden staff, robbed Lincoln Green, of 100 gold coins.
Count 2
Aggravated Robbery: Contrary to Section 311 (1)(b) of the Crimes Decree, 2009
Robert of Locksley on the 15th day of August 2012, at Lautoka in the Western Division, being
armed with a long bow, robbed Merry Winter, of 10 gold coins, a golden chalice and an 18 carat
ruby ring.
(d)
State Counsel
Taken before me: Magistrate
[Robert of Locksley] 30 years old Date:
A joint trial must be just.
R v. P (1991) 3 All ER 337

JOINDER OF COUNTS
Section 59(2) of the Criminal Procedure Decree 2009
Where more than one offence is charged in a charge or information, a description of each offence
shall be set out in a separate paragraph of the charge of information, and each paragraph shall
be called a count.
JOINDER OF ACCUSED PERSONS
The following persons may be joined in one charge or information and may be tried together -
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of -
(i) aiding or abetting the commission of the offence; or
(ii) attempting to commit the offence;
(c) persons accused of different offences provided that all offences are founded on the same
facts, or form or a part of a series of offences of the same or similar character, and
(d) persons accused of different offences committed in the course of the same transaction.
EXAMPLE 3 Section 60 (a) of the Criminal Procedure Decree 2009
On 5 September 2012, at 7.00pm, Batman and Robin broke into Commissioner Gordons residence
at Grantham Road, Raiwaqa, Suva and looked through the Commissioners files for his records of the
Joker. They took nothing and caused no damage.
Where the evidence at the trial is admissible against each accused, it is not necessary
for the judge to address the case against each accused separately.
Huynh v the Queen [2013] HCA 6 at [51]
Direction: As you are well aware by now this is a joint trial of [number] accused. I
told you at the outset of the trial that this was simply a matter of administrative
convenience. But I also told you that you have to consider the case against each
accused person separately when considering your verdicts. You will be required to
return a separate verdict in respect of each individual accused. Simply because the
Prosecution allegation is that they are [each/all] guilty of the same offence, it does
not follow that you approach your deliberations in the same way.
Suva PEP58/11 C.P.C Form 3
I.O IP4303 SHERLYN SMITH
CRIMINAL PROCEDURE DECREE 2009

(Section 56) FIJI
In the Magistrates Court at SUVA Criminal Case No:
CHARGE
(COMPLAINT BY PUBLIC OFFICER)
Count
Criminal Trespass: Contrary to Section 387 (4)(a) of the Crimes Decree 2009
Bruce Wayne and Dick Grayson, on the 5th day of September 2012, at Suva in the Central
Division, entered, by night and without lawful excuse, the dwelling-house of James Gordon.
(d)
State Counsel
Taken before me: Magistrate
[Bruce Wayne] 25 years old Date:
[Dick Grayson] 18 years old
EXAMPLE 4 Section 59 (2) and Section 60 (b)(i) of the Criminal Procedure Decree 2009
On 11 September 2012, at Airport Park, Nadi, the Penguin assaulted Batman with his umbrella
whilst Catwoman called out encouragement from the side. Batman received a cut to the side of the
face before he escaped in a cloud of smoke.
The interests of justice normally require that all co-accused are dealt with in one
trial. A joint trial will reduce the risk of inconsistent verdicts. Prejudice associated
with inadmissible material can usually be cured by appropriate directions.
Webb & Hay v R (1994)181 CLR 41; R v Gibb & McKenzie [1983] 2 VR 155; R v
Demirok [1976] VR 244)
Nadi PEP28/12 C.P.C Form 3
I.O IP KIMBERLY DIESEL
(Section 56) FIJI
In the Magistrates Court at NADI Criminal Case No:
CHARGE
Count
Assault Causing Actual Bodily Harm: Contrary to Section 275 and Section 45 (2) of the Crimes
Decree 2009
Oswald Chesterfield Cobblepot (as principal in the first degree) and Selina Kyle (as principal in
the second degree) on the 11th day of September 2012, at Nadi in the Western Division, hit Bruce
Wayne with an umbrella, thereby causing a cut to the face of the said Bruce Wayne.
(d)
State Counsel
Taken before me:
Magistrate
[Selina Kyle] 25 years old Date:
[Oswald Cobblepot] 50 years old
The general rule in favour of joint trials may be displaced where this course will deny
an accused a fair trial.
R v Oliver (1984) 57 ALR 543; R v Patsalis [1999] NSWSC 649

EXAMPLE 5 Section 60 (b)(ii) of the Criminal Procedure Decree 2009
On 11 September 2012, at Labasa, Hasar (10 years and 4 months old) tried to kill Behter.
Hassar shot an arrow at Behter but Behter ducked and avoided the arrow meant for him.
Labasa PEP38/12 C.P.C Form 3

I.O SGT 4303 ALVIN RHODES

(Section 56) FIJI
In the Magistrates Court at LABASA Criminal Case No:
CHARGE
Count 1
Attempted Murder: Contrary to Section 237 and Section 44 of the Crimes Decree 2009
Hasar on the 11th day of September 2012, at Labasa in the Northern Division, unlawfully
attempted to cause the death of Behter.
(d)
State Counsel
Taken before me:
[Hasar] 10 years and 4 months old
Magistrate
Date:
States Parties recognize the right of every child alleged as, accused of, or recognized
as having infringed the penal law to be treated in a manner consistent with the
promotion of the child's sense of dignity and worth, which reinforces the child's
respect for the human rights and fundamental freedoms of others and which takes
into account the child's age and the desirability of promoting the child's
reintegration and the child's assuming a constructive role in society.
Article 41 (1) of the Convention on the Rights of the Child

EXAMPLE 6 Section 60 (c) of the Criminal Procedure Decree 2009
On 11 September 2012, at 7.00pm, Mika Dua and Jone Rua broke into Fruit Town Shop (4, Sunshine
Parade, Nausori) and stole 10 oranges. Jerry Lima owned Fruit Town Shop.
At 12.00am, Mika Dua met Rusi Tolu and they broke into Jack B. Nimble Shop (5 Water Drive,
Nakasi) and stole 5 candlesticks.
At 2.00am, Jone Rua and Sireli Va punched Ciwa Tini at Bau Landing, Bau and took $10.00 off him.
On 13 September 2012, Rusi Tolu met Jo Ono and they assaulted Vitu Walu outside the Whistling
Duck Nightclub, Main Street, Nausori and took his Timex watch valued at $50.00.
Nausori PEP58/12 C.P.C Form 4

I.O SGT 4303 JOSAIA REED

(Section 56) FIJI
In the Magistrates Court at NAUSORI Criminal Case No:
CHARGE
Count 1
Aggravated Burglary: Contrary to Section 313 (1) (a) of the Crimes Decree 2009
Mika Dua and Jone Rua, in company with each other, on the 11th day of September 2012, at
Nausori in the Eastern Division, entered Fruit Town Shop with intent to commit theft therein.
Count 2
Theft: Contrary to Section 291 of the Crimes Decree 2009
Mika Dua and Jone Rua, on the 11th day of September 2012, at Nausori in the Eastern Division
stole ten (10) oranges from Fruit Town Shop, the property of Jerry Lima.
Count 3
Aggravated Burglary: Contrary to Section 313 (1)(a) of the Crimes Decree 2009
Mika Dua and Rusi Toli, in company with each other, on the 12th day of September 2012, at
Nausori in the Eastern Division entered into Jack B. Nimble Shop, with intent to steal therein.
Count 4
Theft: Contrary to Section 291 of the Crimes Decree 2009
Mika Dua and Rusi Toli, on the 12th day of September 2012, at Nausori in the Eastern Division
stole 5 candlesticks from Jack B. Nimble Stop, the property of Jack B. Nimble.
Count 5
Aggravated Robbery: Contrary to Section 311 (1) of the Crimes Decree 2009
Jone Rua and Sireli Va, in company with each other, on the 12th day of September 2012, at Nakasi
in the Eastern Division robbed Ciwa Tini of cash to the total value of FJD$10.00.
Count 6
Aggravated Robbery: Contrary to Section 311 (1) of the Crimes Decree 2009
Rusi Tolu and Jo Ono, in company with each other, on the 13th day of September 2012, at Nausori
in the Eastern Division robbed Vitu Walu of a wrist watch valued at FJD$50.00.
(d)
State Counsel
Taken before me:
[List all accused] List their ages Magistrate
Date:
The capacity to ensure a fair trial for the accused must always be the dominant
consideration governing the exercise of a discretion; and the more complainants
there are whose evidence is not admissible in the trials affecting other complainants,
the more difficult it will be for adequate directions to be given by the trial judge to
avoid prejudice occurring to the accused.
CGL v DPP (Vic) [2010] VSCA 26

EXAMPLE 7 Section 60 (d) of the Criminal Procedure Decree 2009
On 12 March 2014, Aros Volturi met Edward Snowden in Vienna and gave the said Edward
Snowden Austrian Passport No. 62228888 which contained Snowdens picture but which was in the
name of a William Bligh. The passport was purportedly made in the form of an Austrian passport on
the authority of the Director of Immigration of Austria. The Director of Immigration provided a
statement on 21 March 2014 indicating that he had not authorized the making of the said passport.
Aros Volturi intended that Edward Snowden use the Passport to enter into Tonga via Fiji under a
false identity in order that the said Edward Snowden might evade capture by Viennese authorities.
Edward Snowden paid him 10, 000.00 for the passport via wire transfer on 14 March 2014. On 15
March 2014, Aros Volturi wire transferred Mere Jane, a Fijian national, 1,000.00. Mere Jane then
facilitated the entry of Edward Snowden into Tonga via on 17 March 2014, knowing that Edward
Snowden was travelling under an assumed name and using a false passport.
Nadi PEP67/14 C.P.C Form 4

I.O SGT 4303 AMAN DATT
(Section 56) FIJI
In the Magistrates Court at NADI Criminal Case No:
CHARGE
Count 1
PROVIDING A FALSE TRAVEL DOCUMENT: Contrary to Section 127 (a), (b) and (c) (ii) of the
Crimes Decree 2009.
Aros Volturi, on the 12th day of March 2014, at Vienna in Austria5, provided a false travel
document, namely Austrian Passport number 62228888, to Edward Snowden, with intent that the
said document would be used to facilitate the entry of Edward Snowden into the Republic of Fiji,
in circumstances where the entry of the said Edward Snowden into the Republic of Fiji would not
comply with the requirements of the Republic of Fijis laws for entry into the Republic of Fiji; and
with intent to obtain 10, 000.00 for the provision of the said passport.
Count 2
People Smuggling: Contrary to Section 122 (1) (a), (b), (c) and (d) (i) of the Crimes Decree 2009.
Mere Jane, on the 17th of March 2014, at Nadi in the Western Division, facilitated the entry of
Edward Snowden into the Kingdom of Tonga via Fiji under a false travel document namely
Austrian Passport number 62228888 in non-compliance with the Kingdom of Tongas immigration
laws; Edward Snowden not being a citizen or permanent resident of the Kingdom of Tonga, and
the said Mere Jane having obtained 1, 000.00 to facilitate the said entry.
(d)
State Counsel
Taken before me:
[List all accused] List their ages Magistrate
Date:
5 See Section 7 of the Crimes Decree 2009.

REQUISITES OF A CHARGE:
The following principles are important to bear in mind:
Shekar v State [2005] FJCA 18; AAU0056.2004 (15 July 2005) per Ward P, Henry and McPherson
JJA
the purpose of the charge is to ensure that the accused person knows the offence with
which he is being charged. Whilst the particulars should be as informative as is reasonably
practicable, it is not necessary to slavishly follow the section in the Act.
DPP v Solomone Tui[1975] 21 FLR 4 per Grant CJ.
Despite its apparent scope, it has been held that the provisions of this section cannot
validate a fundamental error going to the root of the matter; such as the failure to include
in the charge a necessary ingredient of the offence in question, duplicity of a charge, want of
jurisdiction, or a charge which discloses no offence known to law."
Grant C.J. was referring to the provision at Section 342 of the Criminal Procedure Code Cap. 21 (now
repealed).
DUPLICITY IN A CHARGE:
Archbold, Criminal Pleading, Evidence and Practice (44th Ed, 1995), Vol 1, p. 75
The indictment must not be double; that is to say, no one count of the indictment should
charge the defendant with having committed two or more separate offencesThis rule,
though simple to state, is sometimes difficult to applyDuplicity in a count is a matter of
form, not evidence.(see Greenfield (1973) 57 Cr App R 849 at 855-856)
Vokai v Reginam [1981] FJCA 16; [1981] 27 FLR 16 (25 November 1981) per Gould VP,
Marsack and Spring JJA
We are in agreement with the learned judge in the (High) Court that there was no
duplicity; as he states, duplicity only arises when a person is charged in one count with two
distinct offences.
The interests of justice is not a hard-edged concept. A decision as to what the

interests of justice requires calls for an exercise of judgment in which a number of
relevant factors have to be taken into account and weighed in the balance. In difficult
borderline cases, there may be scope for legitimate differences of opinion.
R v Maxwell [2010] UKSC 48

DPP v. Merriman [1973] AC 584, per Lord Morris of Borth-y-Gest at p. 593A-E
It isa general rule that not more than one offence is to be charged in a count in an
indictment.The question arises what is an offence? If A attacks B and, in doing so,
stabs B five times with a knife, has A committed one offence or five? If A in the dwelling
house steals 10 different chattels, some perhaps from one room and some from others,
has he committed one offence or several? In many different situations comparable
questions could be asked. In my view, such questions when they arise are best answered
by applying common sense and by deciding what is fair in the circumstances. No precise
formula can usefully be laid down but I consider that clear and helpful guidance was
given by Lord Widgery CJ in Jemmison v Priddle [1972] 1 QB at 495. I agreethat it
will often be legitimate to bring a single charge in respect of what might be called one
activity even though that activity may involve one or more than one act. It must, of
course, depend upon the circumstances
SEVERING THE CHARGE:
Where, before trial or at any stage of a trial, the court is of the opinion that -
(a) an accused person may be prejudiced in his or her defence by reason of being
charged with more than one offence in the same charge or information; or
(b) for any other reason it is desirable to direct that the person be tried separately
for any one or more offences charged in a charge or information -
the court may order a separate trial of any count or counts in the charge or
information.
R v. Moghal (1977) 65 Cr App R 56, (CA) per Scarman L.J.
"...we think that only in very exceptional cases is it wise to order separate trials when two or more
are jointly charged with participation in one criminal offence. ... The question is for the judge in
the exercise of his discretion, and it is thus that the law has been stated ever since, that the
appellate court will intervene only if satisfied that the judges decision has caused a miscarriage
of justice."
For the concept of the interests of justice carries with it the notion of practicality,
reasonableness, and regard for the rights of others, including the rights of other litigants and
participants in the case in question or in the case lists awaiting their trials.
State v Takiveikata - Ruling No 2 [2004] FJHC 123; HAC0005.2004S (22 July 2004)
State v. Boila [2005] FJHC 143; HAC0032X.2004S (17 June 2005) per Shameem J.
"There are many public interest reasons why such offenders should be tried together. One is the
public expense involved in conducting several trials based on the same law and evidence. Another
is that witnesses would be greatly inconvenienced by having to give the same evidence many
times. A third is that a joint trial is more likely to lead to uniform treatment in respect of all
connected defendants. Lastly, separate trials usually lead to delay in the hearing of cases."
R v Assim (1966) 2 All ER 881.
"As a general rule it is, of course, no more proper to have tried by the same jury several offenders
on charges of committing individual offences that have nothing to do with each other than it is to
try before the same Jury offences committed be the same person that have nothing to do with
each other. Where, however, the matters which constitute the individual offences of the several
offenders are upon the available evidence so related, whether in time or by other factors, that the
interests of justice are best served by their being tried together, then they can properly be the
subject of counts in one indictment and can, subject always to the discretion of the Court, be tried
together. Such a rule, of course includes cases where there is evidence that several offenders acted
in concert but is not limited to such cases."
State v Rasaqio [2010] FJHC 283; HAC155.2007S (27 July 2010) per Madigan J
"[11]...Some of the civilian witnesses would have to be called twice. As the State counsel points out
to run two trials is an expensive burden on the State.
[12] I agree. Only in cases where it is absolutely necessary should severance of counts be ordered.
Not one of the accused in this trial will be prejudiced in his defence by being charged with both
robbery and murder."
R v Grondkowski and Malinowski [1946] KB 396 at 371 per Goddard LCJ.
"Prima facie it appears to the court that where the essence of the case is that the prisoners were
engaged on a common enterprise, it is obviously right and proper that they should be jointly
indicted and jointly tried, and in some cases it would be as much in the interest of the accused as
of the prosecution that they should be. Suppose, for instance, that the defence of one was that he
or she was acting under the positive duress of the other. It would be obviously right that they
should be tried by the same jury, who might see in one prisoner a harmless or nervous looking
little man or woman, and in the other a savage brute whom they might deem capable of forcing
his co-prisoner against his will into assisting in a crime."
R v Patsalis [1999] NSWSC 649
The presumption in favour of joint trials is not rebutted simply because one or more accused
persons intend to mount a cut-throat defence (i.e. implicate a co-accused). The judge must
consider whether a joint-trial would cause unfair prejudice to each accused, although such
prejudice will likely be uncommon.
R v Fernando & Ors [1999] NSWCCA 66; R v Beaven (1952) 69 WN 140; R v Gibb &
McKenzie [1983] 2 VR 155; R v Grondkowski [1946] KB 369.
Where an accused will rely on a "cut-throat defence", a joint trial will allow the jury to consider
all the relevant facts. The evidence at separate trials is likely to be incomplete in relation to each
accused and the jury would receive an artificial version of events.
R v Gibb & McKenzie [1983] 2 VR 155; R v Grondkowski [1946] KB 369; R v Patsalis [1999]
NSWSC 649.
A joint trial where one accused intends to implicate a co-accused may be inappropriate where the
evidence which will be led is so prejudicial that a fair trial for all accused would be impossible.
R v Darby (1982) 148 CLR 668; R v Brown [1990] VR 820.
Where several accused are charged as co-conspirators, they should not be tried together if the
evidence against one or more is substantially different to the evidence against the others. Such a
situation creates a real risk that the jury may convict one of the accused on inadmissible evidence
by failing to give effect to a separate consideration direction.
IN SUMMARY:
SEVERANCE
Will an
accused be
prejudiced in
his or her
defence?
The accused and the In deciding whether to join
prosecutor may apply for Is there any or keep separate, consider
severance of the Charge other reason S. 59 and S. 60 of the
pursuant to S. 59 (3) of the why it would
Criminal Procedure Decree,
Criminal Procedure Decree, prove
desirable to 2009 in totality.
2009. direct a
separate trial
Take into
account the
public interest
consideration
s against
severance
IN SUMMARY
THE CHARGE PROCESS
Is there a reasonable prospect of conviction?
Advice Is it in the public interest to prosecute?
Is the Charge compliant with s. 56 (1), (2), (5) and (7) of the Criminal
The Procedure Decree 2009?
Charge
Is your Charge compliant with Part VII, Division 2 of the Criminal

Vet the Procedure Decree 2009?
Charge
REPRESENTATIVE COUNTS:
THEFT OR OTHER MISAPPROPRIATION OF PROPERTY
When a person is charged with any offence involving the theft or other misappriation of
property, it shall be sufficient to specify the gross amount of property in respect of which the
offence is alleged to have been committed, and the dates between which the offence is alleged to
have been committed without specifying particular times or exact dates.
THEFT, FRAUD, CORRUPTION & ABUSE OF OFFICE
When a person is charged with any offence involving theft, fraud, corruption or abuse of
office, and the evidence points to many separate acts involving money, property or other
advantage, it shall be sufficient to specify a gross amount and the dates between which the
total of the gross amount was taken or accepted.
DISTINCTION
Section 70 (1) of the Crimes Decree 2009 allows you to roll up property and dates in the one
representative or rolled up count, for theft and other misappropriation of property offences.
Section 70 (2) of the Crimes Decree 2009 allows you to roll up property stolen, property or
money defrauded or dishonestly gained or lost, and property or money or advantages
dishonestly or corruptly gained, and the dates in which these acts occurred for theft, fraud,
corruption or abuse of office offences.
REPRESENTATIVE COUNTS -SEX CRIMES:
When a person is charged with any offence of a sexual nature and the evidence points to more
than one separate acts of sexual misconduct, it shall be sufficient to specify the dates between
which the acts occured in one count and the prosecution must prove that between the
specified dates at least one act of a sexual nature occured. In such a case the charge must
specify in the statement of offence that the count is a representative one.
EXAMPLE 8
Suva PEP59/11 C.P.C Form 3

I.O SSP5509 RONEIL PRAKASH

(Section 56) FIJI
In the Magistrates Court at SUVA Criminal Case No:
CHARGE
[REPRESENTATIVE COUNT]
Count
RAPE: Contrary to Section 207 (1) and (2)(a) and (3) of the Crimes Decree 2009
JOHN SMITH, between the 5th day of September 2012 and the 31st day of December 2012, at SUVA
in the CENTRAL DIVISION, inserted his penis into the vagina of JANE DOE, a 12 year old female
child.
(d)
State Counsel
Taken before me:
[John Smith] 25 years old Magistrate
Date:
Note : When a victim alleges the commission of one offence but cannot remember a specific
date, Section 70 (3) does not apply.
Section 70 (3) only applies when a victim alleges multiple instances of a sexual offence occurring
over a period of time.
Note: When faced with a situation where a victim alleges the commission of multiple offences of
a sexual nature, the Prosecutor should group offences that are the same together, and if there are
different types of sexual offences, they should be set out in separate and distinct counts.
For example: in instances where a victim asserts digital penetration of the vagina, digital
penetration of the anus and penile penetration of the vagina over a period of time, and is unable to
supply specific dates to the Police, then the Prosecutor should set out three separate representative
counts for each of these distinct forms of rape.
RIGHTS OF ACCUSED PERSONS:
Section 14 of the Constitution of the Republic of Fiji:

Rights of accused persons
14 (2) Every person charged with an offence has the right
(a) to be presumed innocent until proven guilty according to law;

(b) to be informed in legible writing, in a language that he or she understands, of the
nature of and reasons for the charge;
(c) to be given adequate time and facilities to prepare a defence, including if he or she so
requests, a right of access to witness statements;
(d) to defend himself or herself in person or to be represented at his or her own expense
by a legal practitioner of his or her own choice, and to be informed promptly of this
right or, if he or she does not have sufficient means to engage a legal practitioner and
the interest of justice so require, to be given the services of a legal practitioner under
a scheme for legal aid by the Legal Aid Commission, and to be informed promptly of
this right;
(e) to be informed in advance of the evidence on which the prosecution intends to rely,
and to have reasonable access to the evidence;
(f) to a public trial before a court of law, unless the interests of justice otherwise
require;
(g) to have the trial begin and conclude without unreasonable delay;
(h) to be present when being tried, unless
(i) the court is satisfied that the person has been served with a summons or
similar process requiring his or her attendance at the trial, and has chosen not
to attend; or
(ii) the conduct of the person is such that the continuation of the proceedings in his
or her presence is impracticable and the court has ordered him or her to be
removed and the trial to proceed in his or her absence;
(i) to be tried in a language that the person understands or, if that is not practicable, to
have the proceedings interpreted in such a language at State expense;
(j) to remain silent, not to testify during the proceedings, and not to be compelled to
give self-incriminating evidence, and not to have adverse inferences drawn from the
exercise of any of these rights;
(k) not to have unlawfully obtained evidence adduced against him or her unless the
interests of justice require it to be admitted;
(l) to call witnesses and present evidence, and to challenge evidence presented against
him or her;
(m) to a copy of the record of proceedings within a reasonable period of time and on
payment of a reasonably prescribed fee;
(n) to the benefits of the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed between the time the offence was
committed and the time of sentencing;
and
(o) of appeal to, or review by, a higher court.

THE PLEA:
1. The Charge is filed at the Criminal Court Registry commencing criminal proceedings against
an accused person.
2. When parties appear before the Court in respect of the Charge, the accused person will be
given the opportunity to offer his or her plea.
3. Before the plea is taken, the Court must tell an unrepresented accused person that:
(1) He or she has the right to represent himself or herself.

(2) He or she has the right to seek private Counsel for himself or herself.
(3) He or she also has the right to seek legal aid from the Legal Aid Commission.
4. The Court should hear the unrepresented accused persons reply and give them a
reasonable opportunity to obtain Counsel if that is what the accused person elects. (See:
Singh v the State [2000] FJHC 115; HAA0079j.2000s (26 October 2000).)
5. If the accused person is ready to offer a plea, then the Court should ask the accused which
language he or she wishes the Charge to be read out in and should accommodate that
preference. (See: DPP v. Amato [1995] FJHC 183; [1995] 41 FLR 18 (10 February 1995).)
6. The Charge should then be read out and the Court should explain the elements of each
offence, before asking the accused person if he or she understands the allegation. (See: DPP
v. Amato, supra.)
7. If the accused person indicates that he or she understands the Charge, then his or her plea
should be taken. The Court should at that point bring to the unrepresented accused persons
attention any statutory defences that are available to him or her. (See: Akuila Kuboutawa
v. R, Labasa Criminal Appeal No. 2 of 1975.)
8. If the accused person elects a plea of guilty, the Court must ask the accused person if he or
she is pleading voluntarily or if he or she has been pressured or induced into offering that
plea. (See: Singh v the State, supra.)
9. If the Court is satisfied that the plea is voluntary, then the Court should then call upon the
State to present its Summary of Facts.
10. The Summary of Facts should include the original Record of Interview, Charge Statement,
Medical Reports and Post-Mortem Reports, and a factual narrative that includes sufficient
detail regarding each element of the offence. (See: Nawaqa v State [2001] FJHC 283; [2001]
1 FLR 123 (15 March 2001).)
11. If there is no dispute regarding the Summary of Facts, the Court may then decide to accept
the plea of guilty. However, no conviction should be entered at this point. The Court should
then hear from the accused or Counsel for the accused regarding any factors to be
presented in mitigation. (See: R v. Blandford Justices (1966) 2 WLR 1232.)
12. Following this, the Court should then hear from both parties regarding sentence. The Court
should then, after hearing from parties, exercise the sentencing options available under the
Sentencing and Penalties Decree 2009 which range from orders made without a
conviction being entered, to the entering of a conviction followed by the imposition of a
term of imprisonment. (See: the ODPP Sentencing Policy at page 79.)
DUTY TO EXERCISE VIGILANCE IN THE CASE OF UNREPRESENTED ACCUSED PERSONS
Michael Iro v R [1966] 12 FLR 104 the Court of Appeal at p 106D said:
"In our view there is a duty cast on the trial judge in cases where the accused person is
unrepresented to exercise the greatest vigilance with the object of ensuring that before a plea
of guilty is accepted the accused person should fully comprehend exactly what that plea of
guilty involves.
As was said by Lord Reading CJ in Rex v Golatlian 11 Cr. App. R. 79:
"It is a well known principle that a man is not to be taken to have admitted that he has
committed an offence unless he pleads guilty in plain, unambiguous and unmistakeable
terms."
To this statement of the law could properly be added that not only should the plea be
unambiguous but that it should be given in full understanding of all that it implies: R v Vent
(1935) 25 Cr. App. R. 55; R v Griffiths (1932) 23 Cr. App. R. 153 (emphasis added).
GUIDANCE TO MAGISTRATES DEALING WITH AN UNREPRESENTED ACCUSED PERSON
Singh v the State [2000] FJHC 115; HAA0079j.2000s (26 October 2000):
When an accused person is unrepresented, the court must be sure that the plea has been
entered with a full and understanding mind.
If the record does not reflect such an understanding, this will lead to the entire proceedings
being declared a nullity
For the guidance of Magistrates in the future however I suggest the following format before
the plea is taken:
1. Before you plead to the charge, I must inform you that you have the right to defend
yourself, to instruct a lawyer of your own choice, or if you wish, to apply for a lawyer
on legal aid.
2. Do you wish to instruct your own lawyer?
3. Do you wish to apply for legal aid to the Legal Aid Commission?
If the answer is no to (2) and (3) then the Magistrate should hear the plea. If the plea
is one of Guilty the Magistrate should ask:
4. Are you pleading guilty voluntarily or have you been pressured or induced to do so?
DUTY TO ENSURE THAT THE ACCUSED PERSON UNDERSTANDS THE CHARGE
Director of Public Prosecutions v. Amato [1995] FJHC 183; [1995] 41 FLR 18 (10 February 1995)
When a person is charged the particulars should be read out to him, so far as possible in his
own language, but if that is not possible, then in a language which he can speak and
understand.
The magistrate should then explain to the accused person all the essential ingredients of the
offence charged. If the accused then admits all those essential elements, the magistrate should
record what the accused has said, as nearly as possible in his own words, and then formally
enter a plea of guilty.
The magistrate should next ask the prosecutor to state the facts of the alleged offence and,
when the statement is complete, should give the accused the opportunity to dispute or explain
the facts or to add any relevant facts.
If the accused does not agree with the statement of facts or asserts additional facts which, if
true, might raise a question as to his guilt, the magistrate should record a charge of plea to
not guilty and proceed to hold a trial.
If the accused does not deny the alleged facts in any material respect, the magistrate should
record a conviction and proceed to hear any further facts relevant to sentence. The statement
of facts and the accuseds reply must, of course, be recorded.
DUTY TO BRING STATUTORY DEFENCES TO THE ATTENTION OF THE UNREPRESENTED

ACCUSED PERSON
Akuila Kuboutawa v. R, Labasa Criminal Appeal No. 2 of 1975:
in the case of an unrepresented accused any statutory defence should be brought to his
attention.
WHEN THE GUILTY PLEA MAY BE ACCEPTED
R v. Blandford Justices (1966) 2 WLR 1232 per Widgery J, as he then was, at p. 1240:
If the defendant is represented, if the defendant is a man of mature years who clearly
understands what is being put to him, it may well be that the magistrate can accept the plea in
the sense that he can regard it as being a satisfactory plea upon which he can safely act
without further enquiries. But in cases where the defendant is not represented or where the
defendant is of tender age or for any other reason there must necessarily be doubts as to his
ability finally to decide whether he is guilty or not, the magistrate ought, in my judgment, to
accept the plea, as it were, provisionally, and not at that stage enter a conviction. He ought, in
my judgment, in these cases to defer a final acceptance of the plea until he has a chance to
learn a little more about the case and to see whether there is some undisclosed factor which
may render the unequivocal plea a misleading one...
DUTY TO READ THE RECORD OF INTERVIEW, CHARGE STATEMENT & MEDICAL REPORT
Nawaqa v State [2001] FJHC 283; [2001] 1 FLR 123 (15 March 2001) per Gates J. (as he then was):
It seems the proceedings in the Magistrates Court have miscarried. This is because of the
incorrect facts put to the magistrate, which may have deterred him from perusing the interview
statements ...
Had he examined those statements together with the Medical Report, he would have raised with
the Appellants the defences preferred in those statements to see if the Appellants were still
maintaining those defences, before he accepted their pleas of guilty.
As Grant (then) Ag. CJ in DPP v Jolame Pita [1974] 20 FLR 5 at p6E put it:
"On a plea of guilty to any offence, the question of what is admitted by an accused
should be ascertained with certainty and if facts are put before a court or explanations
given which derogate from the plea of guilty or which appear to render equivocal what
would otherwise have been an unequivocal plea, then the plea must be changed to one
of not guilty) and the case set down for hearing." (emphasis added)
This ascertainment was not done, and such omission amounted to a lack of vigilance
sufficient to render the proceedings a nullity cf: R v Marylebone Justices, ex parte
Westminster City Council [1971] 1 All ER 1025 at p 1026j.
CONVICTION FOLLOWING A GUILTY PLEA
Interpreting Section 206 (2) of the Criminal Procedure Code Cap. 21 (now repealed) which is
mirrored at Section 174 (2) of the Criminal Procedure Decree 2009, the High Court of Fiji per
Pain J. in Epeli Delai v the State, HAA 22 of 1995 (8 August 1995) held that the word convict
refers to the:
secondary or narrow sense of acceptance of a plea of guilty.
In State v Commissioner of Police & Attorney-General ex parte Mahen Chand, HBJ 001 of 2000 (7
February 2001), the High Court of Fiji per Byrne J. held:
it is trite law now that a finding of guilty amounts to a conviction.
In Rupeni Baleitamavua v State, Criminal Appeal No. HAA107 of 2007 (29 November 2007), the
High Court of Fiji per Shameem J. held that:
it is still open to the magistrate to not enter conviction and instead discharge the
defendant without conviction.
STATUTORY PROVISIONS
MAGISTRATES COURT
Section 174 of the Criminal Procedure Decree 2009:
(1) The substance of the charge or complaint shall be stated to the accused person by the
court, and the accused shall be asked whether he or she admits or denies the truth of the
charge.
(2) If the accused person admits the truth of the charge, the admission shall be recorded as
nearly as possible in the words used by the accused, and the court shall convict the
accused and proceed to sentence in accordance with the Sentencing and Penalties
Decree 2009.
(3) If the accused person does not admit the truth of the charge, the court shall proceed to
hear the case as provided in this Decree.
(4) If the accused person refuses to plead, the court shall order a plea of not guilty to be
entered.
(5) When a corporation is charged with any offence before a Magistrates Court, the
corporation may enter in writing by its representative a plea of guilty or not guilty; and if
-
(a) the corporation does not appear by its representative; or
(b) though it appears it fails to enter any plea
the court shall cause a plea of not guilty to be entered.
(6) Where a charge against a corporation is one which may, with the consent of the accused,
be tried by a Magistrates Court, and the corporation -
(a) does not appear by its representative; or

(b) if it does appear, consents that the offence should be so dealt with
the Magistrates Court may proceed to try such charge summarily in accordance with the
provisions of this Decree.
(7) For the purposes of this section a representative need not be appointed under the seal
of the corporation, and a statement in writing purporting to be signed by
(a) a managing director of the corporation; or

(b) any person (by whatsoever name called) having or being one of the persons having,
the management of the affairs of the corporation
to the effect that the person named in the statement has been appointed as a
representative of the corporation for the purposes of this section shall be admissible
without further proof as prima facie evidence that the person has been so appointed.
SEE : For the Procedure of Taking Plea in the High Court
Sections 217 to 221 of the Criminal Procedure Decree 2009.

DISCLOSURE:
Para 10.1-2
Every accused has a right to fair trial. The prosecutor has, as an integral part of fair trial, a positive
and continuing duty to disclose during any part of the trial material that may assist the defence.
Not all materials need to be disclosed to the defence if disclosure is prejudicial to the public
interest.
Para 10. 3
The concept of public interest immunity recognises that there is immunity from making disclosure
when the public interest in withholding information in a particular case outweighs the normal
rules requiring disclosure.*
Para 10.4
The task of the prosecutor is to evaluate the materiality of information which he or she possesses.
In R v. Keane (1994) 99 Cr. App. R 1, the Court of Appeal defined materiality, emphasizing the
prosecutor's duty in judging materiality, and setting out the balancing exercise to be undertaken by
the courts in deciding upon disclosure. Information is material if it can be seen on a sensible
appraisal by the prosecution to:
(a) be relevant or possibly relevant to an issue in the case;

(b) to raise or possibly raise a new issue the existence of which is not apparent from the evidence
that the prosecution proposes to use; and
(c) hold a real (as opposed to a fanciful) prospect of providing strong link evidence to (a) and (b)
above.
* NB: Seek the opinion of an ADPP if this is in issue.
Dip Chand v. the State [2012] FJSC 6; CAV0014.2010 (9 May 2012):
[41] Under the common law, the duty to disclose encompassed the disclosure of all material
matters which affected the case relied on by the prosecution, whether they would strengthen or
weaken the prosecution case or assist the defence case. Traditionally, the prosecution duty was
considered to be restricted to a duty to make available to the defence, witnesses whom the
prosecution did not intend to call, and earlier inconsistent statements of witnesses whom the
prosecution were to call: see Archbold, Pleading, Evidence and Practice in Criminal Cases, 41st ed
(1982), paras 4-178-4-179.
The prosecutor's duty to disclose, is just one aspect of what is sometimes called the "prosecutor's
obligation to act fairly". The rules of practice, which are calculated to enhance the administration
of criminal justice by ensuring that accused persons have a "fair trial", are collected in the speech of
Lord Devlin in Connelly v. Director of Public Prosecutions [1964] A.C 1254 at 1347. As his Lordship
noted, it is the court itself which carries the responsibility of ensuring that an accused has a "fair
trial", and, to that end, will enforce practices such as those which extend to controlling the form of
presentment or indictment to prevent abuses of the court's process which involve unfairness to the
accused
[42] In R v Ward, 674 this limited approach to disclosure was held to be inadequate, wherein it was
said that -
"An incident of a defendant's right to a fair trial is a right to timely disclosure by the
prosecution of all material matters which affect the scientific case relied on by the prosecution,
that is, whether such matters strengthen or weaken the prosecution case or assist the defence
case. This duty exists whether or not a specific request for disclosure of details of scientific
evidence is made by the defence. Moreover, this duty is continuous: it applies not only in the
pre-trial period but also throughout the trial".
The rule was stated with reference to scientific evidence, because that is what the case concerned,
but the authority was understood to be laying down a general test based on relevance: see R v
Keane [1994] 1 WLR 746, 752.
[44] In Australia, although the principles of common law are generally applicable, there are
differences in the law in the various jurisdictions within the country, as explained in the New South
Wales Law Commission Report of 2000. However, the best statement of the ambit of the
prosecutor's duty in the Australian context is to be found in the judgement of Chernov, J in Cannon &
Rochford v Tahche & Ors [2002] VSCA 84 (13 June 2002) at paragraph 57, which is quoted below-
"The prosecutor's 'duty of disclosure' has been the subject of much debate in appellate courts
over the years. But, as it seems to us, authority suggests that, whatever the nature and extent
of the "duty", it is a duty owed to the court and not a duty, enforceable at law at the instance of
the accused. This, we think, is made apparent when the so-called "duty" is described (correctly
in our view) as a discretionary responsibility exercisable according to the circumstances as the
prosecutor perceives them to be. The responsibility is, thus, dependent for its content upon
what the prosecutor perceives, in the light of the facts known to him or her, that fairness in the
trial process requires."
[46] A similar view has been expressed in the leading Canadian case of R. v Stinchcombe [1991] 3
S.C.R. 326. As Sopinka J observed in the course of his judgment in that case-
"....this obligation to disclose is not absolute. It is subject to the discretion of counsel for the
Crown. This discretion extends both to the withholding of information and to the timing of
disclosure. For example, counsel for the Crown has a duty to respect the rules of privilege. In
the case of informers, the Crown has a duty to protect their identity. In some cases, serious
prejudice or even harm may result to a person who has supplied evidence or information to
the investigation. While it is a harsh reality of justice that ultimately any person with relevant
evidence must appear to testify, the discretion extends to the timing and manner of disclosure
in such circumstances. Discretion must also be exercised with respect to the relevance of
information. While the Crown must err on the side of inclusion, it need not produce what is
clearly irrelevant....."
[47] In the light of the above case law, it is impossible to discern in the circumstances of this case, a
violation of the prosecution's duty to disclose material evidence. In the first place, there is nothing
to suggest that the prosecution was aware of the existence of the medical card that the Petitioner
alleges should have been disclosed to him. Even if the Respondent was possessed a copy of the
medical card, or was aware of its existence, in the absence of any request from the Petitioner for its
disclosure or production, the Respondent could not have anticipated that the Petitioner was in need
of this document and cannot be blamed entirely for its non-disclosure.
Fairness is not an attitude. It is a professional skill that must be honed and

exercised.
-Brit Hume-
BAIL
RATIONALE:
R v. Morales [1992] 3 SCR 711, a decision of the Supreme Court of Canada
The liberty interest of the accused is, undoubtedly, a very important matter which must be
brought to bear on any consideration of the process by which bail is granted or denied. Yet, it is
also evident that it is only one of several important considerations of this kind which bears on
such an inquiry. Indeed, the bail process cannot be accurately described wholly in terms of the
discrete aims of the criminal law. While a finding of guilt under the criminal law will often result
in a deprivation of the liberty of the guilty party, depending upon the sentence, a finding of
criminal guilt also constitutes a recognition of a contravention of one or more of the most
important norms which govern our society. It is the breach of rules of this kind which contributes
to the justness of the detention. It is partly for this reason that a special stigma is viewed as being
attached to a criminal conviction. Unlike that of the application of the criminal law, the purpose
of a denial of bail is neither punishment, nor is it retribution or reform. Rather, it is better
understood as a part of the process by which those aims of the law may eventually be achieved by
safeguarding the proper functioning of the justice system. Far from obscuring the importance of
liberty, a consideration of the administration of justice in these broader terms is necessary for the
due recognition of the ways in which the administration of justice allows liberty to be properly
respected.
Amina Koya v the State, Crim. App. No. AAU0011
I have borne in mind the fundamental difference between a bail applicant waiting trial and one
who has been convicted and sentenced to jail by a court of competent jurisdiction. In the former
the applicant is innocent in the eyes of the law until proven guilty. In respect of the latter he or
she remains guilty until such time as a higher court overturns, if at all. It therefore follows that a
convicted person carries a higher burden of satisfying the court that the interests of justice
require that bail be granted pending appeal.
PRIMARY CONSIDERATIONS:
Article 9 of the International Convention on Civil and Political Rights
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary
arrest or detention. No one shall be deprived of his liberty except on such grounds and in
accordance with such procedures as are established by law.
Bechu and Another v. Regina (1962) 8 FLR 240
There are other considerations which may affect the discretion of a Court in granting or refusing
bail. In the first place, while a Court has, subject to statutory restriction, discretion in granting
bail, such discretion must be exercised judiciously and in the light of the paramount principle that
an accused person is presumed innocent until proven guilty. For that reason, he should not be
deprived of his liberty merely because he is accused of a crime if he can satisfy the test that in all
the circumstances he will appear for his trial on that accusation.
State v. Tunidau [2003] FJHC 188; HAM0001.2003S (1 January 2003
Prima facie, the test for the grant or refusal of bail must always been whether the accused
person will appear for trial. Matters which might assist the court in coming to any conclusion
would be whether bail has been refused previously, the seriousness of the charge, the likelihood of
re-offending, and of interference with prosecution witnesses, the accuseds character, the
possibility of further charges, the accuseds right to properly prepare his/her defence and any
previous failure to attend court.
NB : Bechu and Another v. Regina supra was decided prior to the coming into effect of the
Bail Act, 2002 but the principles espoused are reflected at Section 3 of the Bail Act, 2002.
The decision to grant or deny bail is a discretionary power and as such must be exercised
judiciously.
The primary source for all bail matters is the Bail Act, 2002. See Section 3 (4) and Section
18 of the Bail Act, 2002.
Tukai v. the State [2004] FJHC 235; HAM0053D.2004S (16 August 2004)
Although both Applicants have a right to bail, the presumption can be rebutted where the State
shows that there is a likelihood that the Applicant will not appear in court, or where it is not in
the public interest to grant bail.
State v. Singh [2010] FJHC 600; HAM187.2010 (2 September 2010)
[2] The principles governing bail pending trial are contained in the Bail Act. Section 3 (1)
provides that an accused has the right to be released on bail unless it is not in the interests of
justice that bail should be granted. Consistent with this right, section 3 (3) of the Act declares that
there is a presumption in favour of the granting of bail to an accused, but a person who opposes
the granting of bail may seek to rebut the presumption. In determining whether a presumption is
rebutted, the primary consideration in determining whether to grant bail is the likelihood of the
accused appearing in court to answer the charges against him. Bail can be opposed on three
grounds provided by section 18 (1) of the Act. Section 19(1) provides for three grounds for
refusing bail. Section 19(2) sets out a series of considerations the court must take into account in
determining the three grounds. In broad terms, bail can be refused if the accused is a flight risk or
if it is not in the accuseds interest to be released on bail or it is not in the public interest to release
an accused on bail.
NB: If bail is to be opposed, it is essential that the investigating officer deposes an Affidavit
addressing such issues as flight risk, gravity of any injuries or seriousness, circumstances
and nature of the offence, strength of the prosecution case, severity of likely punishment,
or the grounds upon which the State is asserting prejudice to the accused or the public
interest by reason of the grant of bail. In injury cases, it is important that the State include
in the affidavit, the victims medical report and ideally, the statement of the examining
doctor.
REBUTTING THE PRESUMPTION IN FAVOUR OF BAIL
THE IMPORTANCE OF AFFIDAVIT EVIDENCE:
Roneel Prasad v the State, Criminal Case No. HAM462 of 2012L per Gates C.J
[8] No affidavit was filed by the State. This was a mistake. In forming an opinion for refusal of
bail a court must consider and have regard to all relevant circumstances. Those considerations
are set out at section 19 (2) of the Act and I set them out now:
(a) as regards the likelihood of surrender to custody
(i) the accused persons background and community ties (including residence,
employment, family situation, previous criminal history);
(ii) any previous failure by the person to surrender to custody or to observe bail
conditions;
(iii) the circumstances, nature and seriousness of the offence;
(iv) the strength of the prosecution case;
(v) the severity of the likely penalty if the person is found guilty;
(vi) any specific indications (such as that the person voluntarily surrendered to the
police at the time of the arrest, or, as a contrary indication, was arrested trying to
flee the country.)
Shiri Krishna Rao v the State, Cr. Misc. Case No. HAM 463/2013 (LTK) per Gates C.J.
[5] The applicant is charged with a single count of acts intended to cause grievous harm. This
arose from an act of domestic violence by a son against his mother, using a stick. He allegedly hit
his mother on the left temple and left hand. During the course of his mothers evidence before me,
it appeared there were no remaining wounds or scars at either injury site and no continuing
symptoms. The injuries though not medically described were thus fortunately slight.
[6] However, in cases such as these where bail is applied for, it is of great assistance for the Court,
indeed essential, to be provided by the State with affidavit evidence going to the gravity of the
assault and injuries
[7] Applications of urgency, or those made in the legal vacation, present administrative
difficulties in the path of prosecutors or police investigators. Nonetheless corners must not be cut.
Bail issues must be addressed properly and necessary evidence placed before the court.
[8] Issues of importance here are the extent of the injuries inflicted and the gravity of the assault.
Relevant circumstances when considering the likelihood of the Accused surrendering to custody
are the circumstances, nature and seriousness of the offence[Section 19 (2)(a)(iii) Bail Act].
All (people) have equal rights to liberty, to their property and to the protection of the
laws
- Voltaire -
THE BURDEN AND STANDARD OF PROOF:
Williams v the State [2008] FJHC 249; HAM099.2008 (8 October 2008)
Under the Bail Act, there is a presumption in favour of bail. This presumption has to be
rebutted by the prosecution on balance of probability. Under section 3 (3) of the Bail Act the
presumption is rebutted if the Accused has previously breached a bail undertaking or condition.
State v Tuimouta [2008] FJHC 177; HAC078.2008 (18 August 2008)
In a bail hearing the prosecution carries the burden of proof on balance of probability that the
accused should not be granted bail.
THE EVIDENTIAL REQUIREMENT FOR BAIL:
State v. Singh [2010] FJHC 600; HAM187.2010 (2 September 2010)
[7] It is recognized that rules of evidence are relaxed in bail hearings and a court may rely on
written hearsay evidence provided it is properly evaluated. It must be borne in mind that a bail
hearing is not equivalent to a trial hearing, when guilt or innocence is determined.
State v Tuimouta [2008] FJHC 177; HAC078.2008 (18 August 2008)
[8] A bail hearing is not a trial. In a trial the prosecution carries the burden of proof to satisfy the
guilt of an accused beyond a reasonable doubt.
Suresh Sani & Anor v. the State, HAM 037.03S, 2nd October 2003)
An application for bail in the High Court is generally brought on as a result of the filing of a
motion with supporting affidavits.
PROTECTION OF THE ACCUSED:
Pita Vuli v. State, Misc. Action No. 8 of 1990
the safety of the applicant himself,is an insufficient ground for depriving a person of his
liberty.
If I might say so the protection, safety and security of persons in this country rests primarily with
the police and not with prison warders. Furthermore it is not suggested (by the State) that the
police would not be able to carry out its normal responsibilities in regard to the applicant or that
he has received serious life-endangering threats.
NB: The fact that an offence charged for is a serious one, is not on its own, sufficient to justify
remand.
When arguing protection of an accused or the public interest against an accused, the merest
possibility of harm to self or to others or to the system is not sufficient. You will have to
satisfy the court on the balance of probabilities that the harm is substantially more likely
than not to occur.
PUBLIC INTEREST CONSIDERATIONS:
Turagabete v. the State [2005] FJHC 24; HAM0001J.2005L (14 February 2005)
However, I consider that bail should nevertheless be refused. The offence charged is a serious
offence, and the facts relied upon by the prosecution are set forth in the affidavit of Sgt. 496 Kushi
Ram are that the Applicants kicked the victim to death. The prosecution alleges that the victim
had previously assaulted the 1st Applicant, and that this was a revenge killing. The prosecution
will rely on the evidence of the two eye-witnesses one who is 13 and the other 16.
My concern is for the vulnerability of these two witnesses. The Applicants and the witnesses all
come from the same community. Children are notoriously easy to intimidate or influence. I am of
the view that it is not in the public interest to release the Applicants on bail in order to protect
these witnesses
Williams v the State [2008] FJHC 249; HAM099.2008 (8 October 2008)
[4] However, I am concerned about the Applicants history of breaching bail conditions
[7] Robbery with violence is a serious charge. The offence is prevalent in our community. The
Applicant has a history of committing robbery with violence. Of course, he is presumed to be
innocent until proven guilty in respect of the charges pending in court, but these matters
persuade me that it is in the public interest that the Applicant remains in remand pending trail
despite his ability to provide a surety who has good standing in the community.
Rapui v. the State [2006] FJHC 3; HAM0004D.2006S (2 February 2006)
[5] A Magistrate is sometimes faced with a number of Accused who take it in turns not to turn
up, thus prolonging, and putting off the resolve of the witnesses, to attend and to give their
evidence. In such cases, if a Magistrate forms that view, such view should be recorded, and orders
made for bail to be revoked and for the trial to be advanced. Much will depend on the
circumstances and gravity of the charge as well as on the bail circumstances of each Accused.
Fairness is what justice really is.
-Potter Stewart-
QUANTUM OF BAIL:
S v. Acheson [1991] 2 SA 805 at 823F per Mahomed AJ
The quantum of bail must not be so high as to be beyond the resources of the accused, but not so
low as to make its possible forfeiture a prospect which the accused can contemplate with easy
resignation.
Stack v. Boyle, 342 U.S 1 (1951) 342 U.S 1, a decision of the Supreme Court of America
The right to release before trial is conditioned upon the accuseds giving adequate assurance
that he will stand trial and submit to sentence if found guilty. Ex parte Milburn, 9 Pet. 704, 710
(1835) [342 U.S. 1, 5]. Like the ancient practice of securing the oaths of responsible persons to
stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a
sum of money subject to forfeiture serves as additional assurance of the presence of an accused.
Bail set at a figure higher than an amount reasonably calculated to fulfill this purpose is
excessive under the Eighth Amendment. See United States v. Motlow, 10 F.2d 657 (1926, opinion
by Mr. Justice Butler as Circuit Justice of the Seventh Circuit.) Since the function of bail is limited,
the fixing of bail for any individual defendant must be based upon standards relevant to the
purpose of assuring the presence of that defendant.
Saqasaqa v The State [2006] FJHC 35; HAM0005D.2006S (31 January 2006)
[5] Bail conditions, imposing as they must restrictions on persons awaiting trial, must therefore
be reasonable and commensurate with the gravity of the offence and with the individual risks
identified as applicable. Bail must not be fixed excessively, in effect, denying the applicant an
opportunity to take up the grant of bail. This has been a principle of great antiquity in the
common law.
SURETIES:
State v. Stephens [2003] FJHC 51; HAM0004.1997S (26 May 2003)
[9] In assessing whether a person is a suitable person to stand as a surety for an accused person,
those granting bail must have regard to the definition of surety provided in Section 2 (1) of the
Bail Act, 2002.
surety means a person, other than an accused person or a person under 18 years, whom a
Police Officer or Court determines to be acceptable to provide confirmation of the accused
persons bail undertaking, or security that such undertaking will be complied with.
[10] If a person lives overseas, he will not be able to confirm a bail undertaking or to ensure that
bail undertaking or conditions will be complied with, and perhaps most important of all bail
issues, to ensure that the accused person bailed will attend for his trial or the mention of his case
when notified to do so.
[11] Other persons will not be suitable for a variety of reasons. A spouse may be thought too
beholden to, or emotionally engaged with, an accused person to possess sufficient independence
to take on the duties of the surety. The police need to check persons put up as sureties, and for
that purpose to be allowed to check out and approve the suitability of such persons. If there is a
serious disagreement, the matter of suitability of a surety will have to come back before the court
for its decision.
[12] Prosecution witnesses, even if relatives of an accused, would not be suitable persons to stand
as sureties because of a conflict of their interests.
[13] Because the surety has a duty to ensure the accuseds attendance at court, which is a duty
independent of the accuseds obligation, and to ensure compliance with bail undertakings and
conditions on the part of the accused, it is not possible for an accused himself to put up the cash
surety, or to guarantee reimbursement to the surety in the event of a bail default by the accused.
Indeed in England such conduct amounts to an offence (see Section 9 Bail Act, 1976).
[14] Unless the court were to receive a written request from the surety for his cash to be handed
over to the applicant, the court must be bound by the bond document itself and order the cash
surety to be returned only to the named surety.
Rajesh Kumar v. the State, HAM 008.05S, (23rd March 2005)
Sureties are usually offered, who are in a position to ensure the applicants presence in court, not
only because of the fear of losing the money guaranteed if there is non-appearance, but also
because of some ability to insist on the applicants obedience to bail conditions.
Tawake Cakacaka v. the State, HAM045.04S (2nd August 2004)
A spouse would not be a suitable surety since that person would lack independence, and by virtue
of the emotional attachment to the applicant would be unlikely to ensure the attendance of the
Accused at court.
R v. Head and Head [1978] Crim. LR 427
It is an offence in England for an accused person to put up the cash surety or to guarantee
reimbursement to the surety in the event of a bail default by the accused.
INCOMPLETE POLICE INVESTIGATIONS:
Pita Vuli v. State, Misc. Action No. 8 of 1
Needless to say the laying of criminal charges ought not to be allowed to become an easy means
of depriving or prejudicing a persons liberty nor should it be used to facilitate incomplete police
enquiries unless there are real and substantial grounds to suspect interference.
IN SUMMARY
Is the Accused a flight risk? Is this a fit case for objection to bail? See Sections
1 17 -19 of the Bail Act 2002.
If the answer to 1 is yes, then object to bail and file an Affidavit in support of
2 that objection.
If bail is granted, ensure that suitable conditions are imposed and review the
3 sureties to ensure that they are suitable.
COURT ETIQUETTE
1. Be on time to Court. You should be present inside the Courtroom 15 minutes before the
session is due to commence.
2. Be prepared. You are an officer of the Court and owe a duty to the Court and to the proper
administration of justice to be prepared for the matter you are scheduled to appear for.
3. Stand and bow when the Magistrate or Judge enters or leaves the room.
4. Stop talking when the Magistrate or Judge enters the room. Beyond rising, bowing and
taking your seat again, do not move and remain silent until the Court is called into session.
5. Announce your appearance when your matter is called. Be clear and do not presume that
the presiding Judge or Magistrate has remembered your name, particularly if you are not a
regular before that Court.
6. Stand when addressing the Court, a witness or the Assessors. Stand when the Court is
addressing you. Do not remain sitting when speaking or when you are being spoken to,
unless you have a disability and have received permission from the Court to dispense with
rising to your feet.
7. Do not speak out of turn. Be courteous. If your opponent is raising an objection, let he or she
finish and give the Court an opportunity to truly understand the nature of the objection by
way of any further questions to your opponent, before you offer your response.
8. Do not engage in prolonged conversation with any person who is not the Judge, Magistrate
or a witness when the Court is in session. When a case is being conducted, the focus should
be on the case.
9. Do not distract the due administration of justice by chatting with your Junior or Counsel for
the Defence, regardless of whether you are a party to the case or are waiting your turn. If
conversation is needful, and your case has not yet been called, stand up and leave the room,
have your conversation in quiet and dignified tones outside the Courtroom and then return.
10. Honorifics should be used. The Magistrate is to be addressed as Sir or Maam, the Judge is
to be addressed as My Lord or My Lady, Counsel for the Defence should be addressed as
my learned Friend and witnesses should always be addressed as Mr., Ms., Miss., or Mrs., in
Court.
11. Outside of Court, the Magistrate is to be addressed as Mr., Ms., Miss., or Mrs., and the Judge
is to be addressed as Judge. Unless they truly hold a title outside of their role as Puisne
Judge, it is inappropriate to address them as my Lord or my Lady outside of Court. If they
do have a title outside of their role as Puisne Judge, beyond that of Mr. or Miss. etc, then it is
generally appropriate to address them using the appropriate honorific for that title.
12. Do not leave the Bar Table unattended. There should always be Counsel at the Bar Table
during a civil court session, and there should always be a Prosecutor at the Bar Table during
the criminal court session. When the criminal court is in session, it is important that the Bar
Table be attended by a representative of the Director of Public Prosecutions.
13. Do not remain at the Bar Table if you are not representing any of the parties during the
conduct of a trial. It is not appropriate for parties other than Counsel on record to sit at the
Bar Table during any of the stages of the trial process, including the reading of a ruling, the
summing up, the judgment or the sentence.
14. Stand when the Court is addressing you, and remain silent and attentive when the Court is
addressing your opponent, the accused, the assessors or a witness. Remain silent and still
when the Court is pronouncing a ruling, judgment or sentence.
SEATING
Magistrates Court: The Prosecutor sits closest to the Witness Box. Counsel for the Defence sits
closest to the Dock (if only one row is available). Otherwise, the Prosecutor sits
in front, closest to the Court and Counsel for the Defence sits at the back,
closest to the Dock.
High Court: The Prosecutor sits closest to the Assessors box. The Defence sits closest to the
Witness Box (if only one row is available). Otherwise, the Prosecutor sits in
front closest to the Court and Counsel for the Defence sits at the back, closest to
the Dock.
NOTE: In accordance with the tradition of the English Bar, the Attorney-General sits in
the front row to the right of the Bench, with the DPP immediately on his right.
ORDER OF APPEARANCES
State Counsel: Introduces first. Lead Counsel always introduces both Counsel (Lead and
Junior).
Defence Counsel: Introduces in order of Accused persons. Lead Counsel always introduces both
Counsel (Lead and Junior).
Be clear: May it please the Court, Counsels name is Puamau, first initial S. With me is my
learned Junior, Fatiaki, first initial J. We represent the Director of Public
Prosecutions, my Lord.
May it so please you my Lord, Counsels name is Fotofili, first initial L. With me is
my learned Junior, Kumar, first initial R. We are Counsel for the 1 st Accused, Mr.
Shivendra Nath.
THE LEAD UP TO THE TRIAL PROCESS
First Call: The State should present its Information and file and serve its disclosures.
Plea: The Court should ensure that the accused persons plea is taken.
Pre-Trial: Trial issues should be identified. Objections to any piece of evidence should be
received. Bail should be dealt with as should any applications for the protection
of vulnerable witnesses. In addition, trial dates, durations and needs should be
identified and orders made accordingly, e.g. facilities for the taking of evidence
via Skype, a white board for the expert witness, a DVD player for an exhibit etc.
Voir Dire: Ideally, all evidentiary disputes should be dealt with before the trial proper
commences.
VOIR DIRE
A voir dire (trial within a trial) is held to determine any issue during the course of a trial in any
court, usually the admissibility of impugned evidence. A voir dire may be conducted prior to the
swearing in of assessors but after the accused person has pleaded to the information. (see Section
288 of the CPD 09).
For example, the accused may assert that material should not be admitted into evidence because it
offends against the best evidence rule; or that the material should not be admitted because it was
the result of an unlawful search and/or seizure.
More frequently, a trial within trial will be held to determine the admissibility of confessions, i.e.
admissions against interest made by an accused to a person in authority.
PROCESSES
STEP 1:
During the Pre-Trial Conference, Counsel for the Defence must notify the Court and the State of their
intention to challenge the admissibility of a particular piece of evidence and the grounds upon
which that challenge is mounted. See Section 289 and Section 290 (1)(d) and (2) and (3) of the
Criminal Procedure Decree 2009 and Barmanand v R [1968] FJCA 10; [1968] 14 FLR 139 (30
May 1968).
State Counsel, during the course of serving disclosures will not only have supplied a list of contents
per the disclosure bundle but will also have supplied to the Defence a list of witnesses and a list of
exhibits. The accused should be aware of the evidence the State intends to rely on. Where the
accused is represented by Counsel, it will be reasonable for the Court and the State to expect the
accused to be ready with his or her position and grounds for objection at the Pre-Trial Conference.
For an unrepresented accused, the Court should be encouraged to invest the time, during the early
stages of the proceedings, to explain to him or her the various stages of the pre-trial and trial
process, with a particular focus on the Pre-Trial Conference and all that the Court expects to happen
in it.
The List of Exhibits will not be sufficient to indicate whether or not a voir dire in respect of
photocopy evidence should be held. To that end, State Counsel owes a duty of fairness to the Court
and to the Defence to notify them when exhibits go missing, as well as to notify them of any
intention the State may have to tender photocopy or other alternative evidence.
STEP 2:
If Counsel for the Defence or the accused in person challenges admissibility, they should give the
Court and the State the grounds of that challenge in writing. If they refuse to give or fail to give
written grounds, the State should have recourse to the provisions at Section 289 and Section 290
(1)(d) and (2) and (3) of the Criminal Procedure Decree 2009. State Counsel should apply to the
Court for orders to compel the accused person to supply to the State their written reasons for
asserting that this is impugned evidence.
Productivity is never an accident. It is always the result of a commitment to

excellence, intelligent planning, and focused effort.
-Paul J. Meyer-
STEP 3:
The State should invite the Court to set a realistic schedule regarding the compilation and service of
voir dire disclosures upon the Defence; and regarding the hearing of the voir dire in connection with
the trial.
It is important to note that the Court may fix a voir dire hearing prior to the trial proper pursuant to
Section 290 (2) of the Criminal Procedure Decree 2009 and indeed, it may be prudent for the
Court to hear and determine all matters pertaining to admissibility prior to an actual trial.
For example, it is open to the Court to order that a hearing of the voir dire on photocopy evidence;
or an illegal search and seizure; or the confessions of the accused be heard on 14 June 2014, but fix a
trial date for 3 December 2014 and continue to hold Pre-Trial Conferences to meet any other objects
as set out at Section 289 of the Criminal Procedure Decree 2009, in between.
STEP 4:
The Investigating Officer should be encouraged to maintain close contact with the Officer
prosecuting the brief through each and every step of the criminal court process. Once the voir dire
grounds have been received by State Counsel, they should be immediately dispatched to the
Director of the Criminal Investigations Division, ccd to the Crime Officer of the relevant Police
Station and attentioned to the Investigating Officer.
The grounds should be accompanied by a covering letter and that covering letter should also set out
the materials State Counsel expects the Investigating Officer to supply in the lead up to the voir dire.
Strict time lines should be set and followed. State Counsel should summon all the Officers who have
been impugned (or who have been involved in the arrest and interview of the accused) and direct
them to read through and re-familiarise themselves with their notes and materials from the time of
the arrest, interview and charge.
MATERIALS TO BE GATHERED
Photocopy Evidence:
Statements in Affidavit form from Police personnel confirming that an original existed; that it had
been obtained through lawful and proper means; that the copy is an accurate one; that the original
has been lost or destroyed and if destroyed, how; and that if lost, a diligent search had been
conducted to find it. See State v Vincent Lobendhan (1972) 18 FLR 1, approved in Drodroveivali
v State, [2005] FJCA 5; AAU0019.2003S (4 March 2005).
Search and Seizure:
Statements from the Police regarding the circumstances and particulars surrounding the search and
seizure; and the authority upon which the search and/or seizure was carried out. See Police v
Smith [2003] WSSC 23 (28 October 2003); Police v Masame [2007] WSSC 83 (30 October 2007); R
v Sang [1980] AC 402 and Karuma v State [1955] AC 197.
Admissions against Interest:
Statements from the Arresting Officer/s, the Station Orderly who received the suspect at the Police
Station, the Escorting Officer/s, the Interviewing Officer/s, the Witnessing Officer/s, the Station
Orderly who locked the suspect in the cell, the Charging Officer/s, the Witnessing Officer to the
Charge, the Medical Doctor who examined the suspect, the Justice of the Peace who met with the
suspect. The Medical Report/s of the suspect and the Magistrates Court record for the date of first
call. The relevant State Diary, Cell Book and Meal Book should also be obtained.
NB: These lists are not exhaustive.

PHOTOCOPIES
In Satya Prasad and Anor v R, Criminal Appeal No. AAU0056 of 1980, the Court of Appeal said:
Secondary evidence may be given in the absence of better evidence which the law requires to be
given first, when a proper explanation is given of the absence of the better evidence.
In Drodroveivali v State [2005] FJCA 5; AAU0019.2003S (4 March 2005), the Court of Appeal
(differently constituted) approved the principles set out in R v Vincent Lobendahn (1972) 18 FLR
1 relating to the admissibility of photocopy evidence as follows:
The law on this question required
(a) It must be established that the original itself formerly existed, would have been
admissible in evidence, and that the copy tendered is a true and faithful reproduction
of the original.
(b) The original must be proved to have been lost or destroyed and if lost, due and diligent
search must be established.
(c) It must be shown what happened to the original up to the time when it was lost, and
how the copy was made and came into the hands of the person tendering it.
SEARCH AND SEIZURE
In R v Maihi [2002] NZCA 205; (2002) 19 CRNZ 453; (2002) 7 HRNZ 126 (22 August 2002), the
Court of Appeal of New Zealand summarised the principles that applied to a consideration of the
admissibility of any piece of evidence obtained as a result of the breach of a Constitutional right.
(1) Was the method by which the evidence was obtained lawful?
(2) Despite the unlawfulness of any action undertaken by the Police to obtain that evidence, was
the method by which the evidence was obtained reasonable in all the circumstances.
(3) In considering reasonableness, the Court must have regard to the following:
(i) Whether vindication of that breach by exclusion of the resulting evidence is

outweighed in the particular case by the competing public interest in bringing
offenders to justice. The more serious the breach, the stronger the public
interest factors must before they can be seen as outweighing the need to
vindicate the breach by exclusion of the resulting evidence. Conversely, of
course, a lesser breach requires less on the public interest side of the scale to
outweigh it.
In R v Williams [2007] NZCA 52; [2007] 3 NZLR 207; (2007) 23 CRNZ 1 (7 March 2007), the New
Zealand Court of Appeal held:
(i) A search and/or seizure is only lawful if statute or the common law makes it
so.
(ii) An illegal search and/or seizure will only be deemed reasonable if the breach
is minor or technical. In New Zealand, failure to file a report after the exercise
of a warrantless search is a minor and technical breach but specifying the
wrong property or the wrong registration number on a search warrant was
not.
ADMISSIONS AGAINST INTEREST
Voir Dire to be Held in the Magistrates Court
1. Practice Direction 1 of 1983 has been expressly disapproved by the Court of Appeal in
Rokonabete v the State [2006] FJCA 40; AAU0048.2005S (14 July 2006). At para. [24] the
Court said:
[24] Whenever the court is advised that there is a challenge to the confession, it must hold a
trial within a trial on the issue of admissibility unless counsel for the defence specifically
declines such a hearing. When the accused is not represented, a trial within a trial must
always be held. At the conclusion of the trial within a trial, a ruling must be given before the
principal trial proceeds further. Where the confession is so crucial to the prosecution case
that is exclusion will result in there being no case to answer, the trial within a trial should be
held at the outset of the trial. In other cases, the court may decide to wait until the evidence
of the disputed confessions is to be led.
Test for Voir Dire
2. In Ganga Ram & Shiu Charan v R, Criminal Appeal No. AAU0046 of 1983, the Court of Appeal
held:
It will be remembered that there are two matters each of which requires consideration in
this area. First, it must be established affirmatively by the Crown beyond reasonable doubt
that the statements were voluntary in the sense that they were not procured by improper
practices such as the use of force, threats of prejudice or inducement by offer of some
advantage what has been picturesquely described as the flattery of hope or tyranny of
fear. Second, even if such voluntariness is established there is also need to consider whether
the more general ground of unfairness exists in the way in which the police behave, perhaps
by breach of the Judges Rules falling short of overbearing the will, by trickery or unfair
treatment.
Fabrication
3. In Guston Kean v State [2011] FJSC 11; CAV 0015.2010 (12 August 2011), the Supreme Court
held that the truth and weight of the confession was a matter for the assessors to consider
after taking into account all the evidence.
Directions that ought to be Given regarding Confessions at Trial
4. In Ramalasou v R [2010] FJCA 19; AAU0085.2007 (28 May 2010) and earlier in Tara Chand v
R 14 FLR 72, the Court of Appeal held that voluntariness is not a matter for the assessors. It is a
matter for the judge at the voir dire. At the conclusion of the trial, the assessors should only
rely and act on the confessions if they are satisfied beyond reasonable doubt that (1) the
accused did in fact make the confession and (2) the confession was true.
THE TRIAL PROCESS
Where shall I begin, please your Majesty? asked the White Rabbit.
Begin at the beginning the King said gravely, and go on till you come to the end: then stop.
LEWIS CARROLL: Alices Adventures in Wonderland
THE PROSECUTION CASE
(1) The Opening Address:
It is good to think of the Opening Address as an introduction, one that is planned well and
consequently, is well structured. This is the Prosecutors opportunity to introduce the
Prosecution case against the accused. It should provide a clear road map to the Court of
the legal issues that you expect it to resolve as the trier of fact and law. It should fairly
state what the intended proof will be. If your case is complicated, then there is no better
opportunity to help simplify it and make it understandable. Set out the burden and
standard of proof. In identifying the issues, address realistically anticipated defences. Do
not hesitate to clearly and courteously set out what your expectations are of the Court.
Remember though, this is not a debate; its an important part of a process. Avoid wild
rhetoric and do not over-state your case. (Refer to Addresses at page 76)
This guide by the eminent jurist, John Sopinka, Q.C. will no doubt assist:
"Counsel in opening states the facts of the case, the substance of the
evidence he has to adduce, and its effect on proving his case, and
remarks upon any point of law involved in the case. Counsel may in
opening refer to those facts of which the Court takes judicial notice.
Neither in the opening nor at any stage of the trial may counsel give
his own opinion of the case or mention facts which require proof, but
which it is not intended to prove, or which is irrelevant to the issue to
be tried.
Sopinka, J. (1981) The Trial of an Action. Toronto: Butterworth & Co (Canada) Ltd.
(2) Calling of Witnesses:
The Prosecution is duty bound to adduce its evidence first. Sometimes, as occurred
during the Mahendra Pal Chaudhary trial (a strict liability case), the case will
fundamentally revolve around agreed facts. If witnesses are called, as they will have to be
99% of the time, the Prosecutor will normally undertake an examination in chief of the
witness (an exception occurs when the Prosecutor is only calling the witness in order to
tender the witness for cross-examination).
Examination in Chief:
The purpose of the examination in chief is to have the witness tell their story in their own
words. The examination in chief should be conducted in accordance with the rules of
evidence, be well planned and consequently well-structured, and demonstrate your
ability to ask the appropriate questions in the appropriate manner.
Do not lead except in respect of an undisputed fact. A good rule of thumb is to ask a
question using the four Wives and a Husband. Remember, there is more than one way
to skin a cat.
Where were you at 10.00am on Christmas Day, 2013?
When did this happen?
What were you doing there?
Why were you there at that time?
How did you come to be there?
Examining a witness is a delicate skill. The witness is often nervous and may sometimes
give incomplete or unclear answers. The first two and the last three questions are
examples of how you can ask the same question in three different ways. If the answer
given by the witness seems to you to be incomplete or unclear, take the witness back and
then bring the narrative forward, being careful not to regurgitate old evidence, and not to
lead a witness to an answer. Generally speaking, give it some time between attempts, or
better yet, ask the right question at the right time.
Maintain a logical flow and break down the subject areas. Use a chronological guide for
how you intend to get the witness to tell his or her story. Get the witness to set the
scene, describe the players, and narrate the act.
Focus on one fact at a time. Use transition questions e.g. What happened on 12
February 2014? Ans: I was attacked. I would like to focus on the description of the person
who attacked you. How tall was your attacker? Or piggy-back on a previous answer:
What did you see? Ans: The window pane was broken. When you saw the broken
window pane, what did you do?
Cross Examination:
This will be undertaken by Counsel for the Defence or the Accused in person. (Refer to page
73).
Re-Examination:
Questions in re-examination should only be asked if necessary and should focus on issues
arising out of cross-examination by the Defence. The purpose of re-examination is to give
the witness the opportunity to clarify any matters raised during cross-examination, for
example: if it looks like the witnesss evidence is unclear, or there now seems to be an
inconsistency between the witnesss evidence and a prior inconsistent statement. In the
case of the latter, the appropriate line of questioning should be aimed at giving the
witness an opportunity to explain or clarify the inconsistency. Remember, it is the
witness that is giving evidence not Counsel, either for the State or the Defence.
Re-examination should be brief. Counsel should really think about whether or not it is
necessary, and whether or not it is strategically viable to undertake a re-examination:
Re-examination is a dangerous business. You are trying to rehabilitate a witness who

has been knocked about in cross-examination. The witness is often feeling most
unhappy about being a witness at all and just wants to get out of the witness box.
There is a grave danger that re-examination will produce the same answers that he
has just given in cross-examination
Reid R.F and Holland R.E (1984) Advocacy Views from the Bench. Aurora: Canada Law
Book. However, Counsel must not resile from re-examination simply because a witness
seems fatigued or the case seems hopelessly lost. On the contrary, Counsel should have
the wherewithal to ask the questions needed to revive a case which may fail utterly for
want of trying.
(3) Concluding the Prosecution Case:
Once you have adduced all the evidence you intend to adduce, or can adduce, State
Counsel (or Lead Counsel within the State prosecuting team) should rise to his or her feet
and say:
(Sir or Maam or My Lord or My Lady), that is the conclusion of the States

case against Mr. XYZ.
NO CASE TO ANSWER
The Defence may make an application at this point for a ruling of no case to answer in favour of
the accused. (Refer to No Case to Answer at page 78).
THE DEFENCE CASE
(1) Opening the Defence case : The same considerations for a Prosecution opening
address apply.
(2) Calling Defence witnesses : The same considerations for the call of Prosecution
witnesses apply.
Examination in Chief : See Prosecution Case Examination in Chief
Cross Examination : State Counsel cross-examines the Defence witness.
The purpose of cross-examination is to do any or all of the following:
(i) Obtain helpful information.

(ii) Discredit witnesses and/or their testimony.
(iii) Bolster the testimony of a third person who has discredited the witness
and/or his or her testimony.
Keep your closing address in mind, and only cross-examine to the extent to which you
need to get the information necessary to support the argument you intend to run during
your closing address.
Prepare your cross-examination, and ensure that it is well-structured. You are allowed to
lead.
Francis Wellman said of cross-examination:
It requires the greatest ingenuity; a habit of logical thought; clearness of perception;

infinite patience and self control; power to read mens mind intuitively, to judge of
their characters by their faces, to appreciate their motive; the ability to act with force
and precision; a masterful knowledge of the subject matter itself; an extreme caution,
and above all, the instinct to discover the weak point in the witness under examination.
It involves all shades and complexions of human morals, human passions and human
intelligence. It is a mental dual between counsel and witness.
Wellman, F. (1948) The Art of Cross-Examination, 4th Edition. London: The Macmillan
Company.
Listen to the witness during examination in chief and during cross-examination.
Do not have them regurgitate evidence they have already offered in examination in chief.
This only reinforces their previous testimony.
Do not ask a question you do not know the probable answer to.
Do not argue with the witness. Keep cool, calm and in control throughout the cross-
examination.
Do not allow the witness to explain and in that respect, ask only short, simple, leading
questions.
Have an ordered, logical structure and within that structure, tackle one fact at a time.
You may wish to adopt a sequential approach:
(1) Be friendly and win some concessions. Get the witness to agree with you.
(2) Seek to discredit the witness and put your case (apply Browne v Dunn).
(3) End on a high note. End with a strong point but do not ask one question too
many.
Re-Examination : See Prosecution Case Re-Examination
(3) Concluding the Case for the Defence : Like the Prosecution, the Defence should
clearly indicate that that is the conclusion of their case.
NB: The Defence is under no obligation to offer any evidence and may choose to remain
silent and call no witnesses.
THE CLOSING ADDRESSES
If the accused person calls any witnesses other than himself or herself (regardless of whether
he or she testifies or not), then the Prosecution closes last. In all other circumstances, the
Prosecutor closes first. (Refer to Section 182 of the Criminal Procedure Decree 2009).
In making a speech one must study three points: first, the means of producing
persuasion; second, the style or language to be used; third, the proper arrangement of
the various parts of the speech.
Aristotle, Rhetoric, Book 3, Part 1
The purpose of the closing submission is to persuade the court that the State has proven each
and every element of the offence against the accused beyond reasonable doubt.
Prepare your closing speech and ensure that it is well-structured. State your argument
succinctly and clearly. When canvassing the evidence, draw the Courts attention to the actual
documents and excerpts from given testimony that supports your contention that an element
has been proven beyond reasonable doubt.
French C.J in a speech to the Australian Bar Association Bar Readers Trial Advocacy Course
Closing Dinner Speech titled Trials of Advocacy delivered on 8 July 2011 at Perth said of the
closing address:
Do not get carried away by the justice of your client's case by becoming emotional in
address. It is the reasonableness of your propositions that should work their magic on
the judge, although a glint of moral steel showing just above the forensic scabbard can
be a help.
In Ashmore v Corp of Lloyds [1992] 1 WLR 446 at 453, approved in R v Higgins (1994) 71 A
Crim R 429 at 442 (Vic CCA), Lord Templeton made the point that:
It is the duty of counsel to assist the judge by simplification and concentration and not to
advance a multitude of ingenious arguments in the hope that out of ten bad points the judge
will be capable of fashioning a winner.
The Closing Address (or Speech) should have the following:
A short, succinct statement to engage the Courts interest and/or drive an important
point home.
A short discussion on the Charge the accused is facing and the elements of the Charge.
The Burden and Standard of Proof
An assurance that the State has discharged that burden and met that standard.
Proof of that claim vis--vis a logical discussion of the facts adduced via the evidence at
trial and a structured linking of the evidence to each element of the offence.
By the application of reasoned logic, debunk the defences raised at trial.
End on a strong point or on a high note.
The adage dont tell them, show them is a useful one to apply. Do not hesitate to use the
exhibits tendered into evidence, or quote testimony verbatim (your record must be accurate).
This is an effective way to persuade the Court of the soundness of your submissions. Your
closing address should have content that if adopted by the Judge would easily form the basis,
not of the summing up, but his or her actual judgment on the matter.
Speak when youre angry and you will make the best speech you will ever regret.
-Ambrose Bierce
ADDRESSES
COUNSEL SHOULD NOT:
1. Make submissions to the Court based upon material which is not in evidence.
2. Offer intemperate or inflammatory comments, tending to arouse prejudice or emotion.
3. Offer comments which belittle or ridicule any part of an accuseds case.
4. Offer comments which impugn the credit of a State witness, where the witness was not
afforded the opportunity of responding to an attack upon credit (e.g. no application has been
made to declare the witness hostile).
5. Offer comments which convey to the Court the Prosecutor's personal opinions.
6. Speculate about the motivations of a witness for the evidence that he had given, unless that
motivation has been the subject of specific evidence adduced at trial. (DeVries v The Queen
[2013] VSCA 210 (13 August 2013); R v Cupid [2004] VSCA 183 (8 October 2004)).
7. Invite the Court to speculate on any matter or to suggest that the onus of proof is inverted (in
circumstances where it is not lawful to do so). R v Russo [2004] VSCA 206 (19 November
2004).
[See also: Livermore v R [2006] NSWCCA 334 (20 October 2006), the Supreme Court of New
South Wales (Court of Criminal Appeal)]
HINTS FOR THE PROSECUTOR:
OPENING ADDRESS:
(1) You will have opportunity to argue your case in closing. Keep your remarks factually
descriptive and avoid emotive words or emotive overtones to your remarks. Build your
case brick by brick and avoid long dissertations of the law.
(2) Do not be argumentative. Argument invites the Court to speculate on matters not in
evidence. Argument on the law is bound to be unpersuasive so early into the trial,
particularly as there is at that point currently no material to anchor your argument.
(3) Do not state your personal opinion. As was said in R v Rugari [2001] 122 A Crim R 1
(NSW CCA) at 12 [60], It is not appropriate for counsel, whether they be for the defence
or for the Crown, to express their own views about the evidence, that is a matter for the
tribunal of fact, particularly so where that tribunal is a jury.
(4) Do not overstate the evidence. If a witness does not come up to proof, it will damage your
case. Counsel should state the basis for your case, the general nature of the evidence and
highlight the witnesses you intend to call, as part of your over-arching duty of fairness to
the accused to help them understand the nature of the States case against them.
(5) Be fair. Do not mention inadmissible evidence, or evidence that is still under challenge
(for example: confessions or a photocopy of a document that you intend to adduce in the
absence of the original).
(6) Do not mention facts that you know you cannot prove; or which you are not certain you
are able to prove. Counsel should confine themselves only to the evidence which they
bona fide believe is both available and admissible at trial.
(7) Be prepared. Adequate preparation should allow you to deliver your address in a clear
and engaged manner to and with your panel of assessors. Do not read. If necessary,
Counsel could perhaps reduce the outline of the address to one sheet of paper. Eg. The
sheet could perhaps contain only your key points and the ideas you intend to convey to
your panel of assessors and to the Court, instead of large blocks of text which you expect
to read out.
(8) Be neat, courteous and well-presented. Do not put your hands in your pockets; adopt an
informal pose; place your feet on a seat; fiddle with pens or coins or paperclips etc; do
anything to distract the assessors and the Court from what you are saying. Speak to them
and not at them and ensure that your movement emphasises what you are saying, not
distract from it. Do not come out from behind the Bar Table.
(9) Do not discuss the other sides evidence. This is argumentative. At this point, the Defense
has not opened their case yet, and in light of the burden of proof and the accused persons
right to remain silent, it would be both presumptuous and prejudicial for Counsel to give
the Court the impression that you expect the Defense to drop their shield or prove
anything in their defence.
CLOSING ADDRESS
(1) Do not misstate the evidence.
(2) Do not misstate the law.
(3) Do not offer a personal opinion.
(4) Do not appeal to any perceived biases.
(5) Do not engage in prejudicial argument.
(6) Do not engage in personal attacks against anyone.
(7) Do not offend against the principles set out in Livermore v R supra.
(8) Be fair.
(9) Be prepared.
(10) Be logical.
Excellence is an art won by training and habituation.

-Aristotle-
NO CASE TO ANSWER
MAGISTRATES COURT
Section 178 of the Criminal Procedure Decree 2009 (the prevailing section for the purposes of a
No Case to Answer application) mirrors Section 210 of the Criminal Procedure Code Cap. 21
(now repealed). As a result the common law regarding the interpretation of Section 210 of the
Criminal Procedure Code, Cap. 21 can apply to an interpretation of Section 178 of the Criminal
Procedure Decree 2009.
TEST FOR NO CASE TO ANSWER
State v Ganesh [2009] FJHC 207; HAM030.2008 (17 September 2009) per Goundar J.
The test for No Case to Answer in the Magistrates Court has two limbs:
(i) whether there is relevant and admissible evidence implicating the accused in respect of
each element of the charged offence;
(ii) whether the prosecution evidence has been so discredited by cross examination that no
reasonable tribunal could convict.
Either limb of the test can be relied upon to make an application for no case to answer in
the Magistrates Court.
The test was summarised in Sahib v the State [2005] FJHC 95; HAA0022J.2005S (28 April 2005)
per Shameem J. as follows:
So the magistrate must ask himself or herself firstly whether there is relevant and admissible
evidence implicating the accused in respect of each element of the offence, and second whether on
the prosecution case, taken at its highest, a reasonable tribunal could convict.
In considering the prosecution case at its highest, there can be no doubt at all that where the
evidence is entirely discredited, from no matter which angle one looks at it, a court can uphold a
submission of no case. However, where a possible view of the evidence might lead the court to
convict, the case should proceed to the defence case.
HIGH COURT
Section 231(1) and (2) of the Criminal Procedure Decree 2009 (the prevailing provision for a No
Case to Answer application in the High Court) is similar to Section 293 (1) and (2) of the Criminal
Procedure Code Cap 21 (now repealed).
TEST FOR NO CASE TO ANSWER
Sisa Kalisoqo v Reginam, Criminal Appeal No. 52 of 1984, Fiji Court of Appeal
Whether or not, there is some relevant and admissible evidence, direct or circumstantial, touching
on all elements of the offence, the weight and credibility of such evidence, are not matters for
assessment by the court, at this stage of the proceeding. The weight and credibility of such
evidence, are matters for the assessors, in the trial proper.
SENTENCING POLICY
THE ROLE OF THE PROSECUTOR
1. Chapter 4 of the Legal Practitioners Decree 2009 mandates that the Prosecutor must:
(1) prosecute a criminal matter dispassionately and with fairness;
(2) save in exceptional circumstances, always advise the defence of any matters of
which the prosecutor is aware which might tend to indicate the innocence of the
accused, or mitigate the seriousness of the offence; and
(3) comply with all lawful directions of the Director of Public Prosecutions (DPP)
relating to the manner of conducting prosecutions.
(Emphasis added)
2. The Prosecutors duty is not to advocate for a particular sentence. The Prosecutors only duty
is to ensure that the Court is presented with the information necessary to enable it to properly
carry out its sentencing functions.
3. To that end, the Prosecutor must not seek to persuade the court to impose a vindictive
sentence, or even a sentence of a particular magnitude. Instead, the Prosecutor should:
(a) inform the court of any relevant authority or legislation bearing on the appropriate
sentence;
(b) assist the court to avoid appealable errors on the issue of sentence;
(c) inform the court of an appropriate range of sentencing options available on the facts of
the case, including any custodial or non-custodial options, by reference to guideline
authorities or relevant appellate authority;
(d) highlight any aggravating features available on the facts presented in Court;
(e) provide the court with any facts available to the Prosecutor which might tend to
mitigate the seriousness of the offence;
(f) provide the court with a victim impact statement whenever appropriate; and
(g) correct any error made by Counsel for the Defence in address on sentence.
4. In informing the court of an appropriate range of sentencing options available on the facts of
the case, including any custodial or non-custodial options, the Prosecutor should:
(a) adequately present the facts, and in so doing, only present those facts which are
properly available on the evidence;
(b) ensure that the court is not proceedings upon any error of law or fact;
(c) provide well-researched and up-to-date assistance on the law or facts;
(d) fairly test the opposing case as required;
(e) refer to relevant official statistics and comparable cases and the sentencing options
available;
(f) in instances where there appears a real possibility that the court may make a
sentencing order that is inappropriate and not within the proper exercise of the
sentencing discretion, make firm submissions on that issue particularly if, where a
custodial sentence is appropriate, the court is contemplating a non-custodial sentence.
5. Upon conviction, the Prosecutor must inform the court of the accuseds latest record of
previous convictions, and must ensure that the record is both up to date and accurate.
6. In the case of a juvenile offender, the Prosecutor must exercise care when making submissions
to a court regarding the orders available following a finding of guilt. During the consideration
of an appropriate order following a finding of guilt, the Prosecutor should ensure that all
protections available to the juvenile offender are properly considered and fairly applied.
7. When matters advanced in mitigation can be proven wrong, it is the duty of the Prosecutor to
inform the defence accordingly. If the defence persists, it becomes the duty of the Prosecutor to
invite the court to put the defence to proof on the disputed material and, if necessary, to hear
rebutting evidence. (See the Prosecution Code, 2003).
8. The DPP expressly disapproves the practice of plea-bargaining and no sentence agreement
should be made between the Prosecutor and Counsel for the Defence or an accused in
exchange for a plea.
9. No Prosecutor should, in any way, fetter the discretion of the DPP to appeal against the
inadequacy of a sentence (including, by informing the court or an opponent whether the DPP
would be likely to appeal or not appeal, or whether or not the DPP considers a sentence or
particular range within the sentence appropriate or inappropriate). In exceptional
circumstances, prior approval may be sought from the DPP.
10. No Prosecutor should ever feel pressured into articulating a numerical figure in respect of a
sentence sought for in Court. The Prosecutor is reminded that it is the courts duty to find and
apply the law in respect of sentence and that responsibility is not and should not be
circumscribed by the conduct of legal representatives, and in particular, State Counsel. (See
State v Ashil Kumar, Criminal Case No. AAU0040 of 2012 (2 June 2014).
Punishment is not for revenge, but to lessen crime and reform the criminal.
- Elizabeth Fry
CONVICTIONS ON ALTERNATIVE COUNTS, LESSER AND MINOR OFFENCES
Minor Offences included in the Offence Charged:
When some of the particulars of the offence charge constitute in themselves a separate minor
offence, a Court may convict on the minor offence in instances where the offence charged is not
made out but the minor offence has been proved. No charge for the separate minor offence need
have been laid. (see s.160 CPD 09)
Attempts:
A person may be convicted of an attempt to commit the offence charged with. Implicit in the statute
is the requirement that there be sufficient evidence to prove the attempt. Also implicit in the statute
is the fact that this provision comes into operation only if a Court finds that the substantive offence
was not proved. No charge for the attempt need have been laid. (see s. 161 CPD 09)
Lesser or Alternative Offences:
A person may be convicted, after due process, of the following lesser offences or alternative
offences:
1) The lesser offence of infanticide on an initial charge for murder of a child under the
age of 12 months.
2) The lesser or alternative offence of killing an unborn child on an initial charge for
murder, manslaughter, infanticide or for unlawful abortion in relation to the unborn
child.
3) The alternative offence of unlawful abortion on an initial charge for killing an unborn
child.
4) The lesser offence of concealment of birth where the charge has been for murder,
infanticide or killing an unborn child.
5) The lesser offence of careless or dangerous driving where the charge has been for
manslaughter.
6) Any sexual offence where the charge has been for rape.
7) The alternative offence of carnal knowledge where the charge was for incest.
8) Any other applicable sexual offence where the original charge was for defilement of a
girl under 16 years, however the offence may be termed.
9) Any other applicable property related offence where the initial charge was for
burglary or another property related offence.
10) An alternative offence of receiving for an initial charge for theft.
11) An alternative offence of embezzlement where the initial charge was theft.
12) An alternative offence of theft where the initial charge was embezzlement.
13) An alternative offence of obtaining by false pretences (however the offence is termed)
where the initial charge was theft.
14) An alternative offence of theft where the initial charge was for an offence of obtaining
by false pretences (however the offence is termed).
15) An alternative offence of assault with intent to rob where the initial charge was
robbery.
No charge need be laid in respect of these lesser/alternative counts. (see s. 162 (2) CPD 09)
Section 162 of the Criminal Procedure Decree 2009 is to be construed as in addition to and not in
derogation of the provisions of any other Act Decree or Promulgation and the other provisions of
this Decree; and as being without prejudice to the generality of the provisions at Sections 160 and
161 of the Criminal Procedure Decree 2009. (see s. 163 CPD 09)
PROCEEDS OF CRIME APPLICATIONS
APPLICATION 1:
RESTRAINING ORDER
NB: Applications under the Proceeds of Crime Act Cap. 22D should be made inter-parte,
unless the broader interests of justice require that the application be made ex-parte, e.g.
there is a real risk that if notified of the application, the person or persons in possession
of the property might destroy, or abscond with, it.
The High Court Rules, 1988 apply. Section 27B of the Proceeds of Crime Act Cap. 22D
provides that the proceeding on an application for a restraining order, forfeiture order or
pecuniary penalty order are not criminal proceedings, and with the exception of an
offence under the Act, the rules of construction applicable only in criminal law do not
apply to the interpretation of the Act; and only those rules of evidence applicable in civil
proceedings apply.
Sections 19A, 19B. 34 and 35 of the Proceeds of Crime Act Cap. 22D
Originating Summons
Affidavit in Support
High Court (Civil) Registry
Restraining Order for Property in respect of which a Civil Forfeiture or Criminal

Forfeiture Order may be issued
The Affidavit must state:
(s.34 (4))
(a) the description of the property in respect of which the restraining order is
sought.
(b) the location of the property, and
(c) the grounds for the belief that the property is tainted property or terrorist
property for which a civil forfeiture order (or criminal forfeiture order) may be
made.
Restraining Order for Property in respect of which a Pecuniary Penalty Order may be
issued
(s. 34 (5))
(a) a description of the property in respect of which the restraining order is

sought,
(b) the location of the property,

(c) the grounds for the belief that the person is suspected of having committed a
serious offence and for the belief that the person has obtained a benefit
directly or indirectly from the commission of said offence; and
(d) where the application seeks a restraining order against property of a person
other than the person who is suspected of having committed a serious offence:
the grounds for the belief that the property is subject to the effective control of
the person who is suspected of having committed a serious offence.
Restraining Order for Property in respect of which an Unexplained Declaration may

be issued
(s. 71G (2), s. 71H, s. 71I and s. 71J of the Proceeds of Crime (Amendment) Decree
2012)
(1) All property that the person owns, whether the property was acquired before
or after the commencement of the Decree and the value of each property at the
time it was acquired and at the time of the application.
(2) All property that the person effectively controls, regardless of when the person
acquired effective control, and the value of each property both at the time of
attaining effective control and at the time of the application.
(3) All property that the person has given away at any time regardless whether it
was given away before or after the commencement of the Decree and the value
of each property both at the time it was given away and its value at the time of
the application.
(4) All other property acquired by the person at any time regardless whether this
was before or after the commencement of the Decree, including consumer
goods and consumer durables that have been consumed or discarded (but not
including food, clothing and other items reasonably necessary for ordinary
daily requirements of life), and the value of each property both at the time it
was consumed and discarded and at the time of the application.
(5) All services, advantages and benefits that the person acquired at any time,
whether before or after the commencement of the Decree, and the value of the
service, advantage or benefit both at the time it was acquired and at the time of
the making of the application.
(6) All property, services, advantages and benefits acquired by another person
acting upon the request or direction of the person, regardless whether this was
acquired before or after the commencement of the Decree, and the value of
each property, service, advantage and benefit both at the time it was acquired
and at the time of the making of the application. The property, services,
advantages and benefits should include consumer goods and durables that
have been consumed and discarded (except that food, clothing and other items
reasonably necessary for the ordinary daily requirements of life should not be
included).
(7) Anything of monetary value acquired by the person or another person, in Fiji or
elsewhere, from the commercial exploitation of any product or any broadcast,
telecast or other publication, where the commercial value of the product,
broadcast, telecast or other publication depends on or is derived from the
person's involvement in the commission of a serious offence, whether or not
the thing was lawfully acquired and whether or not the person has been
charged with or convicted of the offence.
(8) The Affidavit should also state the source of the funds used to acquire the
property or item of monetary value set out at (1) (7) above and where the
source is unexplained, set that fact out too.
(9) The Affidavit should state the persons income and outgoings at any or all times
within the period in question.
RESTRAINING ORDER APPLICATIONS
NB: Considerations for Restraining Order applications should be undertaken during the analysis
stage within the brief handling cycle. Counsel should advise the DPP through the Manager or
Divisional Manager when a restraining order application is warranted, and should prepare
and supply draft copies of the Originating Summons and Affidavit to the DPP within 14 days
of the DPPs endorsement of the analysis regarding the desirability of a Restraining Order.
Review is a continuing duty and Counsel should advise on the desirability of obtaining a
restraining order application within 14 days of the receipt of new information that signals (on
any reasonable consideration of the matter) that a restraining order is warranted. The
restraining order application should be filed and served within 14 days of the DPPs
endorsement of that analysis.
STEP 1:
Identify the purpose of the Restraining Order. Is it being restrained for the purposes of an eventual
Civil Forfeiture Order, Forfeiture Order following Conviction, Pecuniary Penalty Order, Forfeiture of
Terrorist Property or in anticipation of an Unexplained Wealth Declaration and the eventual
Forfeiture of Unexplained Wealth should the Declaration be granted?
STEP 2:
Identify the person or persons who have an interest in the property.
STEP 3:
Prepare an Originating Summons and Affidavit in Support using the ODPP Templates provided. Have
it endorsed by the DPP, through your Divisional Manager or Manager, and cause it to be filed.
Remember that pursuant to Section 19A of POCA Cap. 22D, all parties are entitled to 30 days
written notice of the application.
STEP 4:
File and Serve the Originating Summons and Affidavit in Support on the relevant parties, including
any parties that youve identified as having an interest in the property.
STEP 5:
At the hearing, make submissions on the law based on the Affidavit in Support.
STEP 6:
Prepare the Orders in line with the Courts ruling on the matter, and serve the Courts Orders on all
parties, in accordance with the directives of the Court. See Section 38 of POCA Cap. 22D.
APPLICATION 2:
NON CONVICTION BASED FORFEITURE ORDER
The Civil Forfeiture Order
Sections 19C, 19D, 19E of the Proceeds of Crime Act Cap. 22D
Originating Summons
(s. 19E(1))
(i) The evidentiary basis upon which a Court may be satisfied on the balance of
probabilities that the property is tainted property.
Tainted property, in relation to a serious offence or a foreign serious offence means (s.3):
(a) property used in, or in conjunction with, the commission of the offence;
(b) property intended to be used in, or in connection with, the commission of the
offence;
(c) proceeds of crime.
Serious offence means (s.3) an offence of which the maximum penalty prescribed by law
is death, or imprisonment for not less than 6 months or a fine of not less than $500 and a
foreign serious offence means (s.3) a serious offence against the law of a foreign country.
Proceeds of crime means (s.4(1A)) property or benefit that is:
(a) wholly or partly derived or realised directly or indirectly by any person from
the commission of a serious offence or a foreign serious offence;
(b) wholly or partly derived or realised from a disposal or other dealings with
proceeds of a serious offence or a foreign serious offence,
and includes, on a proportional basis, property into which any property derived or
realised directly from the serious offence or foreign serious offence is later converted,
transformed or intermingled, and any income, capital or other economic gains derived or
realised from the property at any time after the offence.
Follow the money. Inevitably it will lead to an oak-paneled door and behind it will be
Mr. Big.
-Attributed to Mr. James Crane by Clive Borrell and Brian Cashinella in their
1975 book Crime in Britain Today -
CIVIL FORFEITURE APPLICATIONS
STEP 1:
Is there sufficient evidence available to satisfy the Court on the balance of probabilities that
property owned by the person, in the possession of the person, or under the effective control of the
person is tainted property? On a careful perusal of the facts and circumstances presented to the
ODPP, is the property best dealt with by way of a non-conviction based forfeiture application?
STEP 2:
Has the property been restrained? If it has not, apply immediately for a restraining order on that
property.
STEP 3:
State Counsel should consult with his or her Divisional Manager or Manager regarding the timing of
the Civil Forfeiture application and these recommendations should go to the DPP in writing. The
DPP will thereafter direct on the appropriate timing of the Civil Forfeiture Order.
This protocol is incorporated to take in account circumstances where other properties or other
crimes come to light in the interim; and/or it transpires that other properties will need to be
retrained, it transpires on a further consideration of the matter that the crime alleged falls within
the purview of a terrorist act and other properties need to be restrained and forfeited, the
circumstances warrant an Unexplained Wealth Declaration application instead, or the timing of
these considerations within the trial cycle, make a post-conviction order the more practical order to
apply for.
STEP 4:
Prepare an Originating Summons and Affidavit in Support using the ODPP Templates provided. Have
it endorsed by the DPP through your Supervising Officer and file it. Remember that pursuant to
Section 19D of POCA Cap. 22D, all parties are entitled to 30 days written notice of the application.
STEP 5:
At the hearing, make submissions in accordance with the evidence you have presented in Court in
support of the Application.
STEP 6:
parties, in accordance with the directives of the Court.
APPLICATION 3:
NON-CONVICTION BASED FORFEITURE ORDER
Forfeiture Orders for Terrorist Property
Sections 19F, 19G and 19H of the Proceeds of Crime Act Cap. 22D
Originating Summons

(s.19H (1))
(i) the evidentiary basis upon which the Court can be satisfied on the balance
of probabilities that the property to which the application relates is
terrorist property.
Terrorist property means:
(a) proceeds from the commission of a terrorist act;
(b) property which has been, is being, or is likely to be used to commit a

terrorist act;
(c) property which has been, is being, or is likely to be used by a terrorist

group;
(d) property owned or controlled by or on behalf of a terrorist group; or
(e) property which has been collected for the purpose of providing support to
a terrorist group or funding a terrorist act.
(s. 3 of the Proceeds of Crime Act Cap. 22D and s. 2 of the Financial
Transactions Report Act 2004)
Terrorist act means:
(a) an act or omission in or outside Fiji which constitutes an offence within

the scope of a counter terrorism convention;
(b) an act or threat of action in or outside Fiji which
(i) involves serious bodily harm to a person;
(ii) involves serious damage to property;
(iii) endangers a persons life
(iv) creates a serious risk to the health or safety of the public or a section
of the public;
(v) involves the use of firearms or explosives;
(vi) involves releasing into the environment or any part thereof or

distributing or exposing the public or any part thereof to any
dangerous, hazardous, radioactive or harmful substance, any toxic
chemical, or any microbial or other biological agent or toxin;
(vii) is designed or intended to disrupt any computer system or the

provision of services directly related to communications,
infrastructure, banking or financial services, utilities, transportation
or other essential infrastructure;
(viii) is designed or intended to disrupt the provision of essential

emergency services such as police, civil defence or medical services;
or
(ix) involves prejudice to national security or public safety;
and is intended, or by its nature and context, may reasonably be regarded as

being intended to
(A) intimidate the public or a section of the public; or
(B) compel a government or an international organisation to do, or

refrain from doing any act; or
(C) seriously destabilize or destroy the fundamental political,

constitutional, economic or social structures of a country or an
international organisation;
but does not include an act which disrupts any services, or is committed in
pursuance of a protect, demonstration or stoppage of work if the act is not
intended to result in any harm referred to in subparagraphs (i), (ii), (iii) or (iv).
Terrorist group means:
(a) an entity that has as one of its activities or purposes committing, or

facilitating a terrorist act;
(b) a specified entity; or
(c) an organisation that is prescribed by regulation.
Specified entity means:
(a) an entity that has knowingly committed, attempted to commit,

participated in committing, or facilitated the commission of a
terrorist act; or
(b) an entity knowingly acting on behalf of, or at the direction of, or in

association with, an entity referred to in paragraph (a) and which
has been prescribed under a written law relating to terrorism.
APPLICATIONS FOR A FORFEITURE ORDER FOR TERRORIST PROPERTY
STEP 1:
Is there sufficient evidence available to satisfy the Court on the balance of probabilities that
property owned by the person, in the possession of the person, or under the effective control is
terrorist property? On a careful perusal of the facts and circumstances presented to the ODPP, is the
property best dealt with by way of an application for a non-conviction based forfeiture order for
terrorist property?
STEP 2:
Has the property been restrained? If it has not, apply immediately for a restraining order on that
property.
STEP 3:
State Counsel should consult with his or her Divisional Manager or Manager regarding the timing of
the forfeiture application and these recommendations should go to the DPP in writing. The DPP will
thereafter direct on the appropriate timing of the forfeiture application. This protocol is
incorporated to take in account circumstances where other properties or other crimes come to light
in the interim; and/or it transpires that other properties will need to be retrained, properties or
other crimes have come to light in the interim and/or it transpires that other properties will need to
be retrained, the circumstances warrant an Unexplained Wealth Declaration application instead, or
the timing of these considerations within the trial cycle, make a post-conviction order the more
practical order to apply for.
STEP 4:
Prepare an Originating Summons and Affidavit in Support, have it endorsed by the DPP through
your Supervising Officer and file it. Remember that pursuant to Section 19G of the Proceeds of
Crime Act Cap 22D, all parties are entitled to 30 days written notice of the application.
STEP 5:
At the hearing, make submissions in accordance with the evidence you have presented in Court in
support of the Application.
STEP 6:
APPLICATION 3:
CONVICTION BASED ORDERS
Forfeiture Order on Conviction
Sections 5, 6, 7, 9, and 11 of the Proceeds of Crime Act Cap. 22D
Originating Summons
Transcript of any proceedings against the person for the offence (s. 9(1))
(s. 11)
(i) the evidential basis upon which the Court can be satisfied that the
property is tainted property or terrorist property for example:
(a) whether the property was in the persons possession at the time of, or
immediately after, the commission of the offence of which the person was
convicted;
(b) whether the property was under the effective control of the person at the
time of, or immediately after, the commission of the offence of which the
person was convicted;
(c) whether the property, and in particular money, was found in the persons
possession or under the persons control in a building, vehicle, receptacle
or place during the course of investigations conducted by the police
before or after the arrest and charge of the person for the offence of
which the person was convicted;
(d) whether the value, after the commission of the offence, of all
ascertainable property of a person convicted of the offence exceeds the
value of all ascertainable property of that person prior to the commission
of that offence, and whether the income of that person from sources
unrelated to criminal activity of that person can reasonably account for
the increase in value.
Inferences:
(s. 11(2))
(a) where the evidence establishes that the property was in the persons
possession at the time of, or immediately after, the commission of the
offence of which the person was convicted that the property was used
in, or in connection with, the commission of the offence;
(b) where the evidence establishes that the property was under the effective
control of the person at the time of, or immediately after, the commission
or the offence of which the person was convicted that the property was
derived, obtained or realised as a result of the commission by the person
of the offence of which the person was convicted and for purposes of this
paragraph effective control shall have the same meaning as in Section 25
of the Proceeds of Crime Act Cap. 22D;
(c) where the evidence establishes that the property, and in particular
money, was found in the persons possession or under the persons
control in a building, vehicle, receptacle or place during the course of
investigations conducted by the police before or after the arrest and
charge of the person for the offence of which the person was convicted
that the property was derived, obtained or realised as a result of the
commission by the person of the offence of which the person was
convicted;
(d) where the evidence establishes that the value, after the commission of the
offence, of all ascertainable property of person convicted of the offence
exceeds the value of all ascertainable property of that person prior to the
commission of that offence, and the Court is satisfied that the income of
that person from sources unrelated to criminal activity of that person
cannot reasonably account for the increase in value that the value of the
increase represents property which was derived, obtained or realised by
the person directly or indirectly from the commission of the offence of
which the person was convicted.
Payment instead of Forfeiture Order
(s. 16)
Where the Court is satisfied that a forfeiture order should be made in respect of property
of a person pursuant to Section 11 (forfeiture order following conviction) or Section 18
(forfeiture order where person has absconded) but that the property or any part thereof
or interest therein cannot be made subject to such an order and, in particular:
(a) cannot, on the exercise of due diligence, be located; or
(b) has been transferred to a third party in circumstances that do not give rise
to a reasonable inference that the title or interest was transferred for the
purpose of avoiding the forfeiture of the property; or
(c) is located outside Fiji; or
(d) has been mixed with other property that cannot be divided without
difficulty; or
(e) has been transferred to a bona fide third party purchaser for fair value
without notice,
the Court may, instead of ordering the property or part thereof or interest therein to be
forfeited, order the person to pay to the State an amount equal to the value of the
property of the property, part or interest.

In a world where crime knows no boundaries, robust law enforcement cooperation is
essential to detecting and prosecuting organized crime.
-Lanny A. Breur -
APPLICATION FOR A CONVICTION BASED FORFEITURE ORDER
STEP 1:
Has the accused been convicted of a serious offence? Is the property tainted property in respect of
the offence for which the person is convicted? Due to the fact that the DPP can apply for either or
both a convicted based forfeiture order or a conviction based pecuniary penalty order, Counsel
should consider which course of action is warranted on the circumstances and specific facts of that
case. The application should be made on the same day that the conviction is handed down, or at
least before the sentence is passed (s. 5(1) and (2) and s. 9 (2)).
STEP 2:
In light of the fact that the proceedings are civil and not criminal in nature (s. 27B) and pursuant to
the DPPs obligation to give written notice of the application to the person and any other person
who may have an interest in the property (s.7(1)), an Originating Summons should be filed. The DPP
(or his or her delegate pursuant to s. 150 and s. 151(1) of the CPD 09) may either file an Affidavit in
Support or apply to rely on the transcript of any proceedings against the person for the offence (s.9
(1)).
STEP 3:
Any amendments to the application should be dealt with pursuant to Section 8 of POCA Cap 22D.
STEP 4:
If a person has absconded the jurisdiction of the court and where the DPP (or his or her delegate)
can satisfy the Court on the evidence that the property is tainted property in respect of a serious
offence for which an information has been laid; that a warrant for the person was issued in relation
to that information; reasonable attempts to arrest the person pursuant to the warrant have been
unsuccessful for a period of 6 months following the issuance of that warrant; or the person has died
after the warrant was issued or an investigation into the matter had commenced, the Court may
issue a Forfeiture Order pursuant to Section 11 (2), (3), (4) and (5) and Section 12 and Section 13 of
POCA CAP. 22D. (see s. 10 and s. 18)
STEP 5:
At the hearing of the matter, make submissions in accordance with the evidence adduced in support
of that application.
STEP 6:
APPLICATION 4:
CONVICTION BASED ORDER
Pecuniary Penalty Order
Sections 5, 8, 20, 21, 22, 23 and 24 of the Proceeds of Crime Act Cap. 22D
Originating Summons
Statements relating to benefits from commission of serious offences (s. 22)
The Affidavit should state:

(s. 20 and s. 21)
(1) the evidential basis to satisfy the court on the balance of probabilities that
the person has benefitted from the offence; and
(2) the value of the benefits derived by a person from the commission of an
offence, for example by stating:
(1) if there is any property obtained as a result of, or in connection

with the commission of, a serious offence;
(2) any advantage the person derived as a result of, or in connection

with the commission of, a serious offence;
(3) (a) (i) all property held by the person on the day on which the
application is made;
(ii) all property held by the person at any time within the period
between the day of the offence, or the earliest offence was
committed and the day the application was made; or within the
period of 5 years immediately before the day on which the
application was made, which is the shorter;
(b) any expenditure by the person since the beginning of the

periods set out at (3)(a) above;
(4) whether a pecuniary penalty order has previously been made

against the person, and the particulars of that previous order;
AND/OR
(5) the value of the persons property at any time after the
commission of the serious offence and the value of the persons
property before the commission of the serious offence.
Inferences:
(s. 21)
(1) Where a person obtains property as a result of, or in connection with the
commission of, a serious offence - the persons benefit is the value of the
property so obtained.
(2) Where a person derives an advantage as a result of, or in connection with the
commission of, a serious offence - the persons advantage is deemed to be a
sum of money equal to the value of the advantage so derived.
(3) The Court shall deem, unless the contrary is proven, that
(a) all property appearing to the Court to be held by the person on the day the
application is made; and all property appearing to the Court to be held by
the person at any time within the period between the day the offence, or
the earliest offence, was committed and the day on which the application
is made, or within the period of 5 years immediately before the day on
which the application is made, whichever is shorter, to be property that
came into the possession or under the control of the person by reason of
the commission of that offence or offences.
(b) Any expenditure by the person since the beginning of that period shall be
deemed by the Court to be expenditure met out of payments received by
the person as a result of, or in connection with, the commission of that
offence or offence.
(c) Any property received or is deemed to have been received by the person
at any time as a result of, or in connection with, the commission by the
person of that offence, or offences, will be deemed by the Court to have
been received by the person free of any interest therein.
(4) Where a pecuniary penalty order has previously been made against a person,
the Court shall have regard to and leave out from its calculations any benefits
taken into account in respect of the previous pecuniary penalty order.
(5) If evidence is given at the hearing of the application for the pecuniary penalty
order that the value of the persons property at any time after the commission
of the serious offence exceeded the value of the persons property before the
commission of the offence - then the Court shall, unless satisfied that the whole
or part of the excess was due to causes unrelated to the commission of the
offence, treat the value of that excess as being benefits derived from the
commission of the offence or offences for which he has been convicted.
Statements relating to benefits from commission of serious offences
Where a person has been convicted of a serious offence, the DPP (or his or her
representative acting under delegated authority pursuant to Sections 50 of 51 (1) of the
Criminal Procedure Decree 2009) may tender to the Court a statement as to any matter
relevant:
(i) to determining whether the person has benefited from the offence or from any
other serious offence of which the person is convicted in the same proceedings or
which is taken into account in determining his sentences, or
(ii) to an assessment of the value of the persons benefit from the offence or any other
serious offence of which he is so convicted in the same proceedings or which is so
taken into account.
If the person accepts (to any extent) an allegation in the statement, the court may, for the
purposes of making that determination or assessment, treat his acceptance as conclusive
of the matters to which it relates.
(s.22 (1)(a) and (b))
Where the statement is tendered and the Court is satisfied that the person has been
served a copy of the statement, the court may require the person to indicate to what
extent he accepts each allegation in the statement and, so far as the person does not
accept any such allegation, to indicate any matter the person proposes to rely on.
(s.22 (2))
If the person fails to indicate to what extent he accepts each allegation of the statement,
and insofar as he does not accept any such allegation, fails to indicate any matter that he
proposes to rely on, the court may treat the person as having accepted every allegation in
the statement, except for an allegation in respect of which the person has complied and
except for an allegation that the person has benefited from the serious offence or that any
property or advantage was obtained by the person as a result of, or in connection with,
the commission of the offence.
(s.22 (3))
An acceptance by the person pursuant to Section 22 of the Proceeds of Crimes Act Cap.
22D that he received any benefit from the commission of a serious offence is admissible
in any proceedings for any offence.
(s. 22 (6))
The person can tender to the Court a statement as to any matters relevant to determining
the amount that might be realised at the time of the pecuniary penalty order is made; and
the DPP may accept to any extent any allegation in the statement. The Court may treat the
acceptance by the DPP as conclusive of the matters to which it relates.
(s. 22 (4))
Allegations may be accepted, or a matter may be indicated:
(a) orally before the Court; or
(b) in writing in accordance with the rules of the Court.
(s. 22 (5))
PECUNIARY PENALTY ORDER APPLICATIONS
STEP 1:
Has the accused been convicted of a serious offence? Has the accused benefited from the offence for
which he is convicted? Because the DPP can apply for either or both a convicted based forfeiture
order or a conviction based pecuniary penalty order, Counsel should consider which course of
action is warranted on the circumstances and specific facts of that case. The application should be
made on the same day that the conviction is handed down, or at least before the sentence is passed
(s. 5(1) and (2) and s. 9 (2)).
STEP 2:
Because the proceedings are civil and not criminal in nature (s. 27B), pursuant to the DPPs
obligation to give written notice of the application to the person and any other person who may
have an interest in the property (s.7(2)), an Originating Summons should be filed. The DPP (or his or
her delegate pursuant to s. 150 and s. 151(1) of the CPD 09) may either file an Affidavit in Support or
submit and rely on a statement pursuant to Section 22 of POCA CAP 22D.
STEP 3:
Any amendments to the application should be dealt with pursuant to Section 8 of POCA Cap 22D.
STEP 4:
At the hearing of the matter, make submissions in accordance with the evidence adduced in support
of that application.
STEP 5:
All of our countries are dealing with the costs and consequences of organized crime
on a daily basis, from human trafficking to illicit drug smuggling and cybercrime.
Criminal enterprises engaging in this activity are increasingly sophisticated and fluid
in their operations, often forging new alliances with other networks around the
world. These networks and the crimes they commit pose serious threats to our vital
infrastructure, our economies, our communications systems, and our citizens and
they demand a coordinated international response.
-William E. Kennard -
APPLICATION 5
UNEXPLAINED WEALTH FORFEITURE
Unexplained Wealth Declaration
NB: The current policy of the Director of Public Prosecutions is that he will not exercise his powers
pursuant to Section 71G of the Proceed of Crime (Amendment) Decree 2009 except in
respect of matters emanating from legitimately investigated criminal matters referred to the
ODPP by the Fiji Police Force, the Fiji Independent Commission against Corruption or any
other legally constituted investigative agency in Fiji, or abroad.
Sections 71F, 71G and 71K of the Proceeds of Crime (Amendment) Decree 2009
Originating Summons
The Affidavit should state:
(s. 71G (2), s. 71H, s. 71I and s. 71J of the Proceeds of Crime (Amendment) Decree
2012)
(i) The basis upon which a court may determine that it is more likely than not
that the persons total wealth is greater than his or her lawfully acquired
wealth and to that end, the Affidavit should state the following:
(ii) All property that the person owns, whether the property was acquired
before or after the commencement of this Decree and the value of each
property at the time it was acquired and at the time of the application;
(iii) All property that the person effectively controls, regardless of when the
person acquired effective control and the value of each property from both
at the time of attaining effective control and at the time of the application
(iv) All property that the person has given away at any time regardless whether
it was given away before or after the commencement of the Decree and the
value of each property both at the time it was given away and its value at
the time of the application;
(v) All other property acquired by the person at any time regardless whether
this was before or after the commencement of the Decree, including
consumer goods and consumer durables that have been consumed or
discarded (but not including food, clothing and other items reasonably
necessary for ordinary daily requirements of life), and the value of each
property both at the time it was consumed and discarded and at the time of
the application;
(vi) All services, advantages and benefits that the person acquired at any time,
whether before or after the commencement of the Decree, and the value of
the service, advantage or benefit both at the time it was acquired and at the
time of the making of the application;
(vii) All property, services, advantages and benefits acquired by another person
acting upon the request or direction of the person, regardless whether this
was acquired before or after the commencement of the Decree, and the
value of each property, service, advantage and benefit both at the time it
was acquired and at the time of the making of the application. The
property, services, advantages and benefits should include consumer goods
and durables that have been consumed and discarded (except that food,
clothing and other items reasonable necessary for the ordinary daily
requirements of life should not be included);
(viii) Anything of monetary value acquired by the person or another person, in

Fiji or elsewhere, from the commercial exploitation of any product or any
broadcast, telecast or other publication, where the commercial value of the
product, broadcast, telecast or other publication depends on or is derived
from the person's involvement in the commission of a serious offence,
whether or not the thing was lawfully acquired and whether or not the
person has been charged with or convicted of the offence;
(ix) The Affidavit should also state the source of the funds used to acquire the
property or item of monetary value set out at (1) (7) above, and where
the source is unexplained, set that fact out too;
(x) The Affidavit should state the persons income and outgoings at any or all
times within the period in question.
APPLICATION FOR AN UNEXPLAINED WEALTH DECLARATION
NB : The current policy of the Director of Public Prosecutions is that any application to the
court for an Unexplained Wealth Declaration would need to be part of an existing
criminal proceeding.
In the absence of a current criminal proceeding it is unlikely an application will be made.
STEP 1:
Are you satisfied on the material before you that a person maintains a standard of living above that
which is commensurate with his or her present or past lawful emoluments? Or Are you satisfied on
the material before you that a person is in control of pecuniary resources or property
disproportionate to his or her present or past lawful emoluments?
STEP 2:
Has this material come to the ODPP by way of legitimate investigations carried out by a lawfully
constituted referring body?
STEP 3:
If the answers to 1 and 2 are yes, then prepare an advice to the DPP through your Divisional
Manager or Manager to the effect that this is a fit case for an application for an Unexplained Wealth
Declaration. In your analysis please consider s.71I and s.71J of the Proceeds of Crime
(Amendment) Decree 2012 and also identify all possible interested parties to the proceedings,
should proceedings commence.
STEP 4:
If the DPP concurs that this is matter for which an Unexplained Wealth Declaration should be
sought, then you ought to simultaneously prepare the documents necessary for a restraining order
application in respect of the persons properties and for an application for an Unexplained Wealth
Declaration (see Section 71G of the Proceeds of Crime (Amendment) Decree 2012). Please
actively seek the assistance of your Divisional Manager or Manager and submit your perfected
documents to the DPP for his or her signature within 7 days of the date the DPPs directive is
communicated to you.
STEP 5:
Ensure that the restraining order application documents (the Originating Summons and Affidavit in
Support) and the unexplained wealth declaration application documents (the Originating Summons
and Affidavit in Support) are filed and served on the relevant parties. Please note that Section 71G
(2) of the Proceeds of Crime (Amendment) Decree 2012 permits these simultaneous
applications.
STEP 6:
At the hearing of the matters, you ought to make submissions in accordance with the evidence you
rely on. Please note that the applications will likely be heard separately and therefore you may be
required to make two separate submissions per each application.
STEP 7:
Prepare the Order and the Declaration in accordance with the Courts rulings and serve on the
parties in accordance with the Courts directives.
You get to a point where it gets very complex, where you have money laundering
activities, drug related activities, and terrorist support activities converging at
certain points and becoming one.
- Sibel Edmonds
THE DECISION TO APPEAL
1. Within 5 days from the date a judgment, sentence, final ruling or final order is handed down by
a trial or appeal court, Counsel in carriage (the Officer) must render a brief analysis addressed
to the DPP, through the Divisional Manager or Manager, regarding the appropriateness of the
said judgment, sentence, final ruling or final order.
If the Officer is of the view that an Appeal should be filed, the advice should contain the grounds
that the Officer urges for inclusion in the Petition or Notice of Appeal. At this juncture, the actual
Petition or Notice of Appeal need not be drafted.
2. If the Divisional Manager or Manager concurs or holds the independent view that an appeal is
warranted, he or she should perfect the grounds of appeal offered, or draft new and perfected
grounds of appeal, and submit the brief along with his or her recommendation or comments to
the DPP within 7 days thereafter.
3. If the DPP decides that no appeal is warranted, he shall enter that direction in writing in the
brief and the brief will be submitted to the Officer, who is to hold the brief until the conclusion
of the appeal period and thereafter, apply to the DPP to close the brief by no later than 14 days
from the conclusion of the appeal period.
4. If the DPP decides that an appeal is warranted, he shall enter that direction in writing in the
brief and the brief will be submitted to the ODPP Registry.
5. In the case of an appeal, the Registry must immediately open a new Appeal Brief (the Green
File). The Appeal Brief must contain the original trial brief (the Red File) or the original appeal
brief (the Green File), and where applicable the:
(1) summing up
(2) judgment
(3) sentence
(4) voir dire ruling
(5) no case to answer ruling
(6) other rulings
(7) application for Bail Pending Appeal
(8) Ruling on Bail Pending Appeal
(9) High Court or Court of Appeal rulings on Leave
(10) High Court or Court of Appeal Judgments
The Green file should have the deadline for the appeal embossed on the front cover in bold. The
Registry should, forthwith, ensure that the details of the newly created Green File is entered in
CASES and dispatched as a matter of priority to the Allocations Manager.
6. The Allocations Manager shall, thereafter, have the brief allocated and dispatched to a Principal
Legal Officer (PLO), with instructions to the PLO to prepare and perfect the Petition or Notice
of Appeal, for the DPPs signature. The Allocations Manager must also assign an ADPP to work in
tandem with the PLO and vet that Petition or Notice of Appeal before it is handed up to the DPP.
7. Alternatively, the Allocations Manager may choose to have the brief allocated to an ADPP for
prosecution of the appeal, and may choose to assign a PLO to assist the ADPP in the preparation
of the Petition or Notice of Appeal and in the prosecution of the appeal proper.
8. The DPP directs that in the case of appeals before the Court of Appeal or Supreme Court, and as
a means of quality control, the matters should only be assigned to Officers of the rank of
Principal Legal Officer or above. Exceptions may be made in rare instances to enable an
allocation to a Senior Legal Officer, but this may only be done by way of an express written
waiver issued by the DPP.
9. The DPP further directs that in the case of appeals before the High Court, the Allocations
Manager and the Divisional Managers are granted the discretionary power to allocate these
matters to Officers of the rank of Senior Legal Officer or above. In these instances, the
Allocations Manager or the Divisional Manager (individually or in conjunction with the other)
must ensure that an Officer senior to the Senior Legal Officer is tasked with the role of
supervising the perfecting of the Petition of Appeal; as well as the prosecution of the appeal
proper before the High Court.
10. The PLO and the ADPP or vice versa, and the Senior Legal Officer and the senior officer assigned
to supervise or vice-versa, must work together to have a perfected Petition or Notice of Appeal
submitted to the DPP for his signature by or before 10.00am two days prior to the expiry of the
appeal period. If the expiration of the appeal period falls on a weekend or holiday, than the
deadline shall correspondingly be either three or four days prior to the expiration of the appeal
period.
11. Once the papers are delivered to the DPP, the DPPs Secretary shall be responsible for bringing
the brief to the immediate (or as soon as is reasonably practicable thereafter) attention of the
DPP. The DPPs Secretary, the Officer assigned to the brief, and the Registry must work together
to ensure that the Petition or Notice of Appeal is signed and filed at the High Court, Court of
Appeal or Supreme Court Registry by or before close of business on the date that the appeal
period expires.
EXPLANATORY NOTE:
High Court Appeals:

The Petition of Appeal must be filed within 28 days of the date the impugned decision of the
Magistrates Court was handed down. Pursuant to Section 252 of the Criminal Procedure Decree
2009 the High Court is responsible for notifying parties that the appeal is afoot and supplying a
copy of the Petition and the Appeal Record to the Respondent.
An exception of this rule lies in respect of decisions of the Magistrates Court operating under an
extended jurisdiction pursuant to Section 4 (2) of the Criminal Procedure Decree 2009. Appeals
from the decision of the Magistrates Court operating under an extended jurisdiction are to be filed
before the Court of Appeal within 30 days of the delivery of that decision.
Court of Appeal:
The Notice of Appeal or Notice for Leave to Appeal must be filed within 30 days of the delivery of
the final judgment or sentence (see Section 26 of the Court of Appeal Act Cap. 12). According to
the Court of Appeal Rules Cap. 12, the would-be Appellant is responsible for serving a copy of the
Notice or Application upon the Respondent. Pursuant to Rule 42 (2) of the Court of Appeal Rules
Cap. 12, the service may be undertaken after filing and the only requirement under the rules is that
the State file a certification of service along with a copy of the Notice or Application served that is
endorsed with the date that the Notice or Application was served, and this should be filed within 7
days of service.
Supreme Court:
Pursuant to Rule 6 of the Supreme Court Rules Cap. 13, A petition and affidavit in support must
(a) be lodged at the Court registry within 42 days of the date of the decision from which special
leave to appeal is sought; and (b) served upon the registrar and all parties to the proceedings who
are directly affected by the petition.
NB: The ODPP should file Petitions and Notices of Appeal along with its necessary supporting
documents and in the quantities required by the Court, within the allocated appeal periods. Service
should be effected within 14 days after the filing of the appeal documents, and a copy of the served
documents along with a certificate endorsing the date the documents were served should be filed
with the requisite registry within 7 days of the date of service.
Diagram 1:
Divisional
or Manager
NB: Appeals from the decision or sentence of a Magistrates Court operating under an Extended
Jurisdiction conferred upon it by virtue of Section 4 (2) of the Criminal Procedure Decree 2009
shall be appealed to the Court of Appeal.
Diagram 2:
Or
Acquittal:
Confirmation of acquittal: No appeal allowed
NB: When an appeal is filed against the decision or sentence of a Magistrates Court operating under
an Extended Jurisdiction, it shall be deemed a first appeal and Section 21 of the Court of Appeal Act
Cap. 12 applies.
Diagram 3:
.
STEP 1:
File the Petition of Appeal at the High Court Registry within 28 days of the day the
decision appealed against was handed down. See the provision at Section 248 (1) of the
Criminal Procedure Decree 2009 as amended by s. 2 of the Criminal Procedure
(Amendment) Decree 2014.
STEP 2:
Serve a Petition of Appeal upon the Magistrates Court (Criminal Registry). Upon receiving
the Petition of Appeal, the Magistrate against whose order, sentence, ruling or decision is
being appealed against must ensure that the record of proceedings in the Magistrates
Court is forwarded to the Chief Registrar of the High Court within 28 days. (s. 250 (1),
CPD 09).
STEP 3:
If the High Court does not dismiss the appeal summarily, the Chief Registrar shall enter
the appeal for hearing; serve a notice of hearing on the parties; supply the respondent
with a copy of the petition and a copy of the judgment or order appealed against; supply
the respondent with a copy of the proceedings (except when the appeal is against
sentence); and where additional grounds are filed by the appellant, serve a notice of such
filing on the respondent and supply the respondent with a cop of the document
containing the additional grounds of appeal. (s. 252, CPD 09).
STEP 5:
If the Appellant wishes to discontinue the appeal, the Appellant may do so by giving
notice in writing to the Chief Registrar to discontinue the appeal. This may be done at any
time before the date of hearing. (s. 255 (1), CPD 09).
STEP 6:
If the Appellant wishes to file additional grounds of appeal, this may be filed (by leave of
the High Court) at any time not later than 3 days before the date fixed for the hearing of
the appeal. (s. 249 (4), CPD 09).
STEP 7:
At the hearing of the appeal, the High Court shall hear the appellant or the appellants
lawyer; and the respondent or the respondents lawyer (if the respondent appears); and
the DPP or the DPPs representative (if there is an appearance by or for the DPP). (s. 256
(1), CPD 09 and s. 117 (8) (d) of the Constitution 2013).
The law is not merely the personal opinions of the judge a case is heard before, but a
system of objective rules and standards that removes the system of justice from a
chaotic exercise of judicial discretions and indiscretions.
- Hutul, W and Callahan, J. (2010 2011) The Elusive Doctrine of Stare

Decisis, The Journal of the DuPage Country Bar Association, Vol. 23 -
Diagram 4:
then
DIAGRAM 5:
STEP 1:
File a Notice of Appeal at the Court of Appeal Registry within 30 days of the day the
final judgment of the High Court was handed down. (s. 26, COA Act Cap. 12) Counsel
should include the judgment or decision of the court below; the information and any
other related document connected with the proceedings; and any documents,
exhibits or parts of exhibits that were in evidence in the court below and are
relevant to any question at issue on appeal. (r. 44 (3) and (4) of the COA Rules Cap.
12)
STEP 2:
Serve a Notice of Appeal upon all parties to the proceedings in the Court below who
are directly affected by the appeal. (r. 35& r.21) Within 7 days after the service of the
Notice of Appeal or Application for Leave to Appeal, the ODPP must file a copy of the
Notice or Application endorsed with a certificate of the date the notice was served.
(r. 43 (2)).
Service should be effected within 14 days after the filing of the appeal documents,
and a copy of the served documents along with a certificate endorsing the date the
documents were served should be filed with the requisite registry within 7 days of
the date of service. If, for reasons outside the control of the ODPP, service has not
been possible after a period of 3 months, then Counsel may need to notify the
Registrar of the Court of Appeal, and seek further time from the Court of Appeal
within which to effect service.
STEP 3:
When the Registrar has received a notice of appeal, or a notice of application for
leave to appeal, or a notice of application for extension of time within which to
appeal, the Registrar shall forthwith apply to the Chief Registrar of the High Court
for a record of the proceedings before the High Court. (r. 42)
STEP 4:
No appeal shall be listed for hearing unless the notice and grounds of appeal or
application for leave to appeal; a copy of the judgment or decision appealed from;
and a certified copy of the record of the proceedings appeal from, have been filed. (r.
43A)
STEP 5:
Primary responsibility for the preparation of the record on appeal rests with the
Registrar in the case of an appellant in person. In any other case, it will depend on
the directions of the Registrar. However, in all cases, the Registrar is responsible for
the transcript of the judges notes. (r. 44 (1) and (2))
STEP 6:
Within 28 days of certification of the record, the Appellant must serve a notice on all
parties named in the notice of appeal or application for leave to appeal that the case
record is ready for collection from the appellant. The Appellant is responsible for
lodging 4 copies of the record with the Registrar. (r. 44 (9))
DIAGRAM 6:
STEP 1:
File 8 copies of the Petition, the supporting Affidavit, and the judgment from which the
special leave to appeal is sought and serve them on the Respondent within 42 days of the
date the judgment appealed against was handed down. (r. 6 and r. 8)
STEP 2:
File a Certificate of Service at the Supreme Court Registry within 7 days of service upon
the parties to the proceedings before the lower court.
STEP 3:
After the Petition has been lodged, the registrar must transmit, to the Court registry the
record, comprising a certified copy of the record of the Court of Appeal; a certified copy of
the proceedings of the Court of Appeal; a certified copy of the judgment appealed from; a
certified copy of the drawn up order of the judgment appealed from; a certified copy of
the order or certificate of the Court of Appeal granting leave to appeal (if any); a signed
list of all the exhibits forming part of the record of the Court of Appeal together with the
originals of all such exhibits; and all other documents necessary for the prosecution of the
appeal or petition.
STEP 4:
Upon receipt of the record, the registrar must issue a summons requesting the parties
and their legal practitioners to appear before the registrar at the time and place stated in
the summons to settle the documents to be included in the record of appeal or of revision;
and thereafter, whether any of the parties attend or not, settle and sign, and in due course
file, a list of such documents.
By a slow but well sustained progress, the effect of each step is watched; the good or
ill success of the first gives light to us in the second; and so, from light to light, we are
conducted with safety through the whole series. We see that the parts of the system
do not clash. The evils latent in the most promising contrivances are provided for as
they ariseWe compensate, we reconcile, we balance. We are enabled to unite into a
consistent whole the various anomalies and contending principles that are found in
the minds and affairs of men.
-Edmund Burke, An Appeal from the New to the Old Whigs 113 (London, J.
Dodsley 1791).-
NB: Although a comment on the purpose of policy development, the quote is

equally appropriate for the purpose of appeals.
LEAVE TO ADDUCE ADDITIONAL EVIDENCE ON APPEAL
MAGISTRATES COURT TO HIGH COURT
Section 249 (6) of the Criminal Procedure Decree 2009:
Except by leave of the High Court, it shall not be lawful for the appellant on the hearing of the
appeal to allege or give evidence on any ground of appeal not included in the petition, or in the
additional grounds filed under subsection (4).
Section 257 of the Criminal Procedure Decree 2009:
(1) In dealing with an appeal from a Magistrates Court the High Court, if it thinks additional
evidence is necessary, may either take such evidence itself or direct it to be taken by a Magistrates
Court. (2) When the additional evidence is taken by a Magistrates Court, such court shall certify
the evidence to the High Court, which shall then proceed to determine the appeal. (3) Evidence
taken under this section shall be taken as if it were evidence taken at a trial before a Magistrates
Court.
In Cumutanavanua v the State [2002] FJHC 9; HAA0086.2001s (28 March 2002), the High Court
expressly approved the following principles in respect of an application for leave to adduce
additional evidence on appeal:
The principles which emerge are firstly whether the evidence is relevant to the appeal,
secondly whether the evidence is credible and admissible, and thirdly whether there was a
good reason for the failure to adduce the evidence in the lower court
In Rajendra Chaudhary v the State [2002] FJCA 8; AAU0006.1999 (31 May 2002), the Court of
Appeal per Sheppard, Tompkins and Smellie JJA held:
The High Court acting in its appellate capacity is entitled to hear evidence in the hearing of
an appeal if it thinks evidence is necessary... So that if in this case the Magistrate had made
a finding unsupported by the material placed before him, or if for some other reason
evidence was necessary to enable the appeal to be determined, the judge could have
required it to be given.
In Veiqaravi v Prices and Incomes Board [2003] FJHC 116; HAA0017J.2003S (26 June 2003), the
High Court per Shameem J. accepted that the considerations set out at Section 23 (2) of the
Criminal Appeal Act, 1968 of England was helpful in considering whether additional evidence
should be allowed on appeal.
as a statement of general principle Section 23 (2) of the Criminal Appeal Act 1968
(England) is helpful. That provision reads:
The Court of Appeal shall, in considering whether to receive any evidence, have regard
in particular to
(a) whether the evidence appears to the Court to be capable of belief;

(b) whether it appears to the Court that the evidence may afford any ground for
allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from
which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the
evidence in those proceedings.
In Gautam v State, Criminal Appeal No. HAA33 of 2007S (18 May 2007), Shameem J. held that the
provision enabling additional evidence at appeal did not exist to allow witnesses to change their
position on relevant issues. The provision exists to redress the wrong done when parties were not
aware of relevant evidence or were not able to adduce such evidence at trial, and are now able to
reveal that evidence at appeal.
THE COURT OF APPEAL
See section 28 of the Court of Appeal Act Cap. 12.
In Mudaliar v State [2008] FJSC 25; CAV0001.2007 (17 October 2008), the Supreme Court heard a
petition for special leave to appeal against the decision of the Court of Appeal disallowing the call of
additional evidence at the appeal. Considering the question, the Supreme Court observed:
31 The application to adduce further evidence before the Court of Appeal was based upon
s 28 of the Court of Appeal Act. That section relevantly provides that the Court of Appeal
may, if it thinks it "necessary or expedient in the interest of justice" receive such evidence.
32 The Court of Appeal referred to several authorities in dealing with this application. It
cited Ladd v Marshall [1954] 3 All ER 745 where Lord Denning stated that there were
three preconditions to the reception of such evidence on appeal. These were:
the evidence could not have been obtained prior to the trial by reasonable diligence;
it must be such as could have had a substantial influence on the result and
it must be apparently credible.
61 Plainly, a decision deliberately taken by an accused not to adduce evidence of a particular

kind at trial will weigh heavily against its reception on appeal. However, no invariable
rule concerning the failure to call such evidence can or should be laid down. The discretion
conferred upon the Court must be exercised judicially, but having due regard to the
interests of justice, above all else.
At his best, man is the noblest of all animals; separated from law and justice, he is
the worst.
-Aristotle-
THE SUPREME COURT
In Chand v State [2012] FJSC 6; CAV0014.2010 (9 May 2012), the Supreme Court per Marsoof,
Hettige and Sundaram JJ. held:
[19] This Court no doubt has the power to permit a party, in an appropriate case, to adduce
fresh evidence. Section 28 of the Court of Appeal Act, expressly provides that the Court of
Appeal may, if it thinks it "necessary or expedient in the interest of justice" receive fresh
evidence, and in terms of Section 14 of the Supreme Court Act No. 14 of 1988, this Court is
possessed of all powers vested in the Court of Appeal, and as the apex court of Fiji Islands, it
has the inherent power to make any order that is conducive to the achievement of the ends of
justice. As was observed by the High Court of Australia in Craig v R [1933] HCA 41;(1933) 49
CLR 429 at 439-
"A court of Criminal Appeal has thrown upon it some responsibility of examining
the probative value of the fresh evidence. It cannot be said that a miscarriage has
occurred unless the fresh evidence had cogency and plausibility as well as
relevancy. The fresh evidence must, we think, be of such character that, if
considered in combination with the evidence already given upon the trial the result
ought in the minds of reasonable man to be affected. Such evidence should be
calculated at least to remove the certainty of the prisoners' guilt which the former
evidence produced. But in judging of the weight of the fresh testimony the probative
force and the nature of the evidence already adduced at the trial must be a matter
of great importance."
[20] Admission of fresh evidence at the stage of an appeal may either be conclusive of the
appeal or may cause the court to order a retrial of the matter. The bases for allowing the
reception of fresh evidence were set out in Ladd v Marshall [1954] 3 All ER 745. In that case
Lord Denning, at page 748 A-B, outlined them in the following passage:
"In order to justify the reception of fresh evidence or a new trial, three conditions
must be fulfilled: first, it must be shown that the evidence could not have been
obtained with reasonable diligence for use at the trial: second, the evidence must
be such that, if given, it would probably have an important influence on the result
of the case, although it need not be decisive: third, the evidence must be such as is
presumably to be believed, or in other words, it must be apparently credible,
although it need not be incontrovertible."
[21] Similar, though not identical criteria, to those laid down in Ladd v Marshall were stated
in R v Parks [1961] 3 All ER 633. An important consideration that influenced the approach of
the courts in these cases was the interest of the state that litigation should come to an end.
In Hertfordshire Investments Ltd. v Bubb [2000] 1 WLR 2318, the English Court of Appeal
emphasised that strong grounds were required to allow fresh evidence in the face of a final
decision. These consideration were foremost in the minds of the learned judges in decisions of
the High Court of Australia in Ratten v R [1974) 131 CLR and Lawless v R (1979) 142 CLR.
[22] The Australian decisions referred to above have also establish that at common law, a
distinction is drawn between "fresh" evidence, that is to say evidence which was not known to
the accused at the time of his trial, and which could not have been discovered by him with
reasonable diligence, and evidence which is merely "new" that is, evidence that was either
known to the accused, or which he could have with reasonable diligence, discovered.
See, Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 402 and 410;
and Mickelberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 301. Evidence which was
either available, or could with reasonable diligence have been discovered before trial, is not
"fresh" evidence.
[23] In Sachinda Nand Mudaliyar v The State CAV0001/2007, the aforesaid distinction was
adopted and applied by this Court, in the context of an application to lead fresh evidence in the
course of an appellate hearing, which might have, if permitted, cast a reasonable doubt as
regards the guilt of an accused who had been tried and convicted by the High Court. In this
case, the proposed fresh evidence consisted of an affidavit from Dr. John Wittaker, a highly
qualified gynaecologist, who had testified for the prosecution at the trial, seeking to qualify his
previous testimony in the light of fresh evidence placed before him, and another affidavit from
Dr. Andrew Mackintosh, who was also a highly qualified gynaecologist, who had not testified
at the trial. In refusing to permit the proposed fresh evidence, this Court observed at
paragraph 61 of its judgment that "a decision deliberately taken by an accused not to adduce
evidence of a particular kind at trial will weigh heavily against its reception on appeal."
[24] However, as this Court proceeded to point out in Sachinda Nand Mudaliyar, in regard to
the question whether fresh evidence ought to be allowed, "no invariable rule concerning the
failure to call such evidence can or should be laid down. The discretion conferred upon the
Court must be exercised judicially, but having due regard to the interests of justice, above all
else."
[25] A crucial consideration in deciding whether fresh evidence should be permitted in this
case, is that there is a strong likelihood that the Petitioner was aware or should reasonably
have been aware of the existence of the medical card now sought to be produced, as the card
was maintained in relation to him, and the defence has produced at the trial the x-ray that was
taken at Lautoka Hospital on 14th July 2005.
[26] However, even if the defence was not possessed of the said medical card, it is clear that the
defence could have procured the same with reasonable diligence. As Tipping J observed in the
New Zealand decision of R v Bain [2004] 1 NZLR 638
"Ordinarily if the evidence could, with reasonable diligence, have been called at the
trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the
overriding criterion is always what course will best serve the interests of justice. The
public interest in preserving the finality of jury verdicts means that those accused of
crimes must put up their best case at trial and must do so after diligent preparation."
In both Mudaliar supra and Singh supra, the Supreme Court held that these were not fit cases for
leave to permit the calling of evidence on appeal.
Knowledge without justice ought to be called cunning rather than wisdom.
-Plato-
LEAVE TO APPEAL OUT OF TIME
In Kumar v State; Sinu v State [2012] FJSC 17; CAV0001.2009 (21 August 2012), the Supreme
Court per Gates. C.J (P) and Hettige and Ekanayake JJ. held
[4] Appellate courts examine five factors by way of a principled approach to such
applications (the application for leave to appeal out of time). Those factors are:
(i) The reason for the failure to file within time.
(ii) The length of the delay.
(iii) Whether there is a ground of merit justifying the appellate court's consideration.
(iv) Where there has been substantial delay, nonetheless is there a ground of appeal
that will probably succeed?
(v) If time is enlarged, will the Respondent be unfairly prejudiced?
In State v Patel [2002] FJCA 13; AAU0002U.2002S (15 November 2002), the Court of Appeal per
Reddy P., Tomkins and Ellis JJA. expressly adopted the following criteria to be applied when
considering an application for an extension of time within which to appeal:
. . . the strength of the proposed appeal and the practical utility of the remedy sought,
the length of the delay and the reasons for the delay, the extent of the impact on others
similarly affected and on the administration of justice, that is floodgates considerations,
and the absence of prejudice to the Crown.
The Court held:
We have given careful consideration to each of these factors. We have reached the
conclusion that despite the excessive and unexplained delay, the strength of the grounds
of appeal and the absence of prejudice are such that it is in the interests of justice that
leave be granted to the applicant. Accordingly we extend the time for the giving of the
notice of appeal to 17 January 2002, being the day on which the notice of appeal was
filed.
All the great things are simple and can be expressed in a single word: freedom,
justice, honour, duty, mercy, hope.
-Winston Churchill-
APPENDICES
APPENDIX 1: CHIEF JUSTICES PRACTICE DIRECTION NO. 2 of 1982
APPENDIX 2: CHIEF JUSTICES PRACTICE DIRECTION 1 of 1983
NB: Expressly disapproved in Rokonabete v the State [2006] FJCA 40; AAU0048.2005S (14
July 2006)
APPENDIX 3: CHIEF REGISTRARS PRACTICE DIRECTION NO. 3 of 1993
APPENDIX 4: CHIEF REGISTRARS PRACTICE DIRECTION NO. 2 of 1994
APPENDIX 5: CHIEF REGISTRARS CIRCULAR of 31 OCTOBER 1996
APPENDIX 7: HIGH COURT OF LAUTOKA PRACTICE DIRECTION 1 of 2000
APPENDIX 8: CHIEF REGISTRARS PRACTICE DIRECTION 1 of 2000
APPENDIX 11: CHIEF JUSTICES PRACTICE DIRECTION NO. 1of 2010
APPENDIX 16: CHIEF REGISTRARS NOTICE DATED 30 OCTOBER 2012
APPENDIX 17: NOTICE DATED 7 MARCH 2014
APPENDIX 18: CHIEF REGISTRARS DIRECTIVE TO LEGAL PRACTITIONERS 1 of 2014

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A handbook containing policy and law covering the role and

Foreword by the DPP 1

Appendix 1: Chief Justices Practice Direction No. 2 of 1982 Supplementation of

Appendix 6: Chief Justices Practice Direction No. 1 of 1999 Rights of Audience

Leadership is the ability to translate vision into reality.

The Constitutional Powers of the DPP:

Discontinue, at any stage

Section 117 (9) of the Constitution 2013

or through other persons acting on his instructions.

Section 50 of the Criminal Procedure Decree 2009

SUPERVISION & CONTROL

of the Criminal Procedure Decree 2009

POWER TO TRANSFER PROSECUTIONS

Section 55 (3) of the Criminal Procedure Decree 2009

POWER TO APPOINT POLICE PROSECUTORS

Section 51 (2) of the Criminal Procedure Decree 2009

Section 53 of the Criminal Procedure Decree 2009

My job as a prosecutor is to do justice. And justice is served when a guilty man is

The following observations are useful to bear in mind:

Anna Katzmann, SC2

Independence without accountability is an illusion. Independent power is entrusted

John McKechnie, QC4

The following principles are important and should be followed:

9. The prosecutor as a minister of justice must not strive for a conviction.

Diagram 1: Executive Management Structure

THE DEPUTY DPP

Diagram 2: Case Management Supervisory Structure

THE ALLOCATIONS MANAGER

THE DIVISIONAL MANAGER THE MANAGER

The Serious Fraud

The Assistant Director of Public Prosecutions:

Diagram 3: Office Hierarchy (Legal)

Assist the DPP in the efficient management of the ODPP,

Assist the DPP in the efficient management of the ODPP,

The PLO is responsible to the DPP for prosecuting trials

(1) The President

Dear Mr. Smith,

Ph: (+679) 3211 567

39. Memos are only to be used:

OFFICE FILE NUMBER

UFS: (TYPE IN NAME OF MANAGER, POSITION HELD)

How the file came to be in our Office.

FACTS OF THE CASE:

DECISION OF THE DPP

Recieve File Date of Receipt

Advise File note your efforts.

Diagram 4: Preparing your Advice

Read and Take notes

For Defences see

Diagram 5: Advice Format

PAPER Minute Sheets

PROOF READ Cross-Check and Refine

STRUCTURE Aspire to clarity, cogency and cohesiveness

The four main purposes of CASES are:

The Registries should prepare quarterly reports for the DPP.

Diagram 1: Updating CASES

From the Matters menu select Matter

Type the matter number/external

You are now shown the Matters tab and

Click on the drop down arrow in the Result field

Select the correct Result.